High-profile issues involving sexual orientation remain at the forefront of public debate, and rhetoric on both sides remains emotionally charged, even inflammatory - no more so than in the case of Catholic League for Religious and Civil Rights v. City and County of San Francisco. In 2006, following a directive from, the Catholic Church to stop placing children for adoption in same-sex households, the San Francisco Board of Supervisors responded by unanimously passing Resolution No. 168-06, a vehement condemnation of the Church for its position on same-sex adoption. Although the Ninth Circuit rejected a Catholic civil rights organization's case against the City and the Supreme Court denied certiorari, the constitutionality of the Resolution under the First Amendment's Establishment Clause remains unsettled: the Ninth Circuit split evenly on the merits, reflecting the muddled state of the Supreme Court's Establishment Clause jurisprudence. This Note analyzes this checkered jurisprudence - focusing on the Court's inconsistent application of the Lemon and endorsement tests - and proposes an analytical framework for expressive government action to find for the Resolution's constitutionality.
The Catholic Church's hostility to homosexuality is as enduring and well known as the City and County of San Francisco's championing of gay rights. Neither side has shied away from confrontation over its beliefs, nor hesitated to wield the most powerful language at its disposal to make its point, culminating most recently in Catholic League for Religious and Civil Rights v. City and County of San Francisco.1 Four days after the Catholic Church announced that it would stop placing children in need of adoption with same-sex households in San Francisco,2 the San Francisco Board of Supervisors, the legislative body of the City and County, unanimously passed non-binding Resolution No. 168-06, vehemently condemning the Catholic Church for its position on same-sex adoption.3 In response, the Catholic League for Religious and Civil Rights - the nation's largest Catholic civil rights organization - and two Catholic residents of San Francisco sued the city for violating the Establishment Clause of the First Amendment.4
The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion,"5 and is applicable to the states under the Due Process Clause of the Fourteenth Amendment.6 Although the Supreme Court has developed a number of tests to interpret and apply the Establishment Clause to government action, and no one test has controlled in every case, the most prominent among them remains the test articulated in Lemon ?. Kurtzman.7 Under Lemon, a government action, to be consistent with the Establishment Clause, "must have a secular legislative purpose," "its principal or primary effect must be one that neither advances nor inhibits religion," and it "must not foster an excessive government entanglement with religion."8
But the Court has also turned, at times, to the endorsement test to assess the constitutionality of a state action that is expressive and often non-regulatory,9 such as the non-binding resolution at issue in Catholic League. First proposed by Justice Sandra Day O'Connor in her concurring opinion to Lynch ?. Donnelly,10 the endorsement test is a context-specific inquiry that asks whether a reasonable observer, knowing of the facts and history of a government practice, would consider that practice to be an endorsement or disapproval of religion, thus making religion relevant to a person's standing in the political community in violation of the Establishment Clause.11
Both the U.S. District Court of the Northern District of California and a three-judge panel of the Ninth Circuit granted San Francisco's motion to dismiss, expressly applying the Lemon test - and relying to varying degrees on the endorsement test - to find that Resolution No. …