Catholic League for Religious and Civil Rights v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATHOLIC LEAGUE FOR 

RELIGIOUS AND CIVIL RIGHTS;

RICHARD SONNENSHEIN; VALERIE

MEEHAN,

Plaintiffs-Appellants,

No. 06-17328

v.

CITY AND COUNTY OF SAN  D.C. No.

CV-06-02351-MHP

FRANCISCO; AARON PESKIN; TOM

OPINION

AMMIANO in his official capacity as

a Supervisor, Board of

Supervisors, City and County of

San Francisco,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted

July 18, 2008—San Francisco, California

Filed June 3, 2009

Before: Procter Hug, Jr., Richard A. Paez, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge Berzon

6579

6582 CATHOLIC LEAGUE v. SAN FRANCISCO

COUNSEL

Robert J. Muise, Thomas More Law Center, Ann Arbor,

Michigan, for the appellants.

Vince Chhabria, City Attorney’s Office of San Francisco, San

Francisco, California, for the appellees.

CATHOLIC LEAGUE v. SAN FRANCISCO 6583

OPINION

PAEZ, Circuit Judge:

Appellants, Catholic League for Religious and Civil Rights,

Dr. Richard Sonnenshein, and Valerie Meehan (collectively,

“Catholic League” or “the League”), appeal the dismissal of

their civil rights action under 42 U.S.C. § 1983 for failure to

state a claim. At issue is the constitutionality of a non-binding

resolution adopted by the Board of Supervisors of the City

and County of San Francisco (“the Board”) concerning the

adoption of children by same-sex couples and the Catholic

Church’s position against such adoptions. Catholic League

argues that in adopting the resolution the Board expressed dis-

approval of the Catholic religion in violation of the First

Amendment’s Establishment Clause. Because we conclude

that the resolution passes constitutional scrutiny, we affirm.1

I.

In March, 2006, the Board passed a non-binding resolution,

Res. No. 168-06, titled: “Resolution urging Cardinal Levada

to withdraw his directive to Catholic Charities forbidding the

placement of children in need of adoption with same-sex cou-

ples.” (“Resolution”). The Resolution provides in full:

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 adop-

tion with homosexual households.

WHEREAS, It is an insult to all San Franciscans

when a foreign country, like the Vatican, meddles

1

We have jurisdiction under 28 U.S.C. § 1291.

6584 CATHOLIC LEAGUE v. SAN FRANCISCO

with and attempts to negatively influence this great

City’s existing and established customs and tradi-

tions 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 liv-

ing in such unions would actually mean doing vio-

lence to these children” are absolutely unacceptable

to the citizenry of San Francisco; and

WHEREAS, Such hateful and discriminatory rheto-

ric 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 unquali-

fied 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 Arch-

bishop Niederauer and the Catholic Charities of the

Archdiocese of San Francisco to defy all discrimina-

tory 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

CATHOLIC LEAGUE v. SAN FRANCISCO 6585

Archdiocese of San Francisco stop placing children

in need of adoption with homosexual households.

The Board passed this resolution in response to a then-

recent directive from Prefect Cardinal William 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.2 Cardinal Levada is the

head of the Congregation for the Doctrine of the Faith—an

official body within the Catholic Church that, according to the

complaint, is charged with “promot[ing] and safeguard[ing]

the doctrine on the faith and morals throughout the Catholic

world.” The Resolution also quotes a statement in a 2003 doc-

ument issued by the Congregation, titled “Considerations

Regarding Proposals to Give Legal Recognition to Unions

Between Homosexual Persons” (“Considerations document”).

The Resolution does not name or specifically refer to the Con-

siderations document, but the League alleges that the lan-

guage “Allowing children to be adopted by persons living in

[homosexual] unions would actually mean doing violence to

these children” is taken from the 2003 document.

Shortly after the Board adopted the Resolution, Catholic

League filed a 42 U.S.C. § 1983 suit in the Northern District

of California, alleging that the Resolution violates the Estab-

lishment Clause by expressing disapproval of and hostility

towards the Catholic Church and Catholic religious tenets.

Catholic League sought “nominal damages, a declaration that

this anti-Catholic resolution is unconstitutional, and a perma-

nent injunction enjoining this and other official resolutions,

pronouncements, or declarations against Catholics and their

religious beliefs.”

The Defendants-Appellees3 filed a Federal Rule of Civil

2

Cardinal Levada’s communique is not part of the record in this case.

3

The Defendants-Appellees include the City and County of San Fran-

cisco; Aaron Peskin, in his official capacity as President, Board of Super-

visors, City and County of San Francisco; and Tom Ammiano, in his

official capacity as a Supervisor, Board of Supervisors, City and County

of San Francisco.

6586 CATHOLIC LEAGUE v. SAN FRANCISCO

Procedure 12(b)(6) motion to dismiss, which the district court

granted in a thorough and well-reasoned decision. Applying

the three-part Lemon test, the district court determined that the

Resolution did not have a purpose secondary to a predominant

religious purpose nor a primary effect of expressing hostility

towards the Catholic religion and that the resolution did not

foster excessive government entanglement with religion. See

Lemon v. Kurtzman, 403 U.S. 602 (1971); Catholic League v.

City and County of San Francisco, 464 F. Supp. 2d 938 (N.D.

Cal. 2006). As a result, the court concluded that Catholic

League failed to state a claim under § 1983 for violation of

the Establishment Clause and dismissed the complaint. Catho-

lic League timely appealed.

II.

We review de novo a dismissal for failure to state a claim

under Rule 12(b)(6). Vasquez v. Los Angeles County, 487

F.3d 1246, 1249 (9th Cir. 2007). In addressing cases in this

posture, we must accept the allegations in the complaint as

true, and draw all reasonable inferences in favor of the plain-

tiff. However, “ ‘conclusory allegations of law and unwar-

ranted inferences’ will not defeat an otherwise proper motion

to dismiss.” Id. (quoting Schmier v. U.S. Court of Appeals for

the Ninth Circuit, 279 F.3d 817, 820 (9th Cir. 2002)).

III.

[1] “[T]he ‘First Amendment mandates governmental neu-

trality between religion and religion and between religion and

nonreligion.’ ” McCreary County v. ACLU, 545 U.S. 844, 860

(2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104

(1968)). This constitutional mandate requires careful and

nuanced consideration in a society like ours where religion

has long played a pervasive social role; government conduct

towards religion “must be judged in its unique circumstances

to determine whether it constitutes an endorsement or disap-

CATHOLIC LEAGUE v. SAN FRANCISCO 6587

proval of religion.” Lynch v. Donnelly, 465 U.S. 668, 694

(1984) (O’Connor, J., concurring).

[2] We apply the three-part Lemon test to determine

whether government conduct—either through endorsement of

religion or hostility towards it—violates the Establishment

Clause. Government action will pass muster if it “(1) has a

secular purpose; (2) has a principal or primary effect that nei-

ther advances nor disapproves of religion; and (3) does not

foster excessive governmental entanglement with religion.”

Vasquez, 487 F.3d at 1255 (citing Lemon, 403 U.S. at 612-

13). Failure to satisfy any of these three inquiries condemns

government conduct as unconstitutional.

[3] Although the courts have not often had occasion to

determine whether government action effects a disapproval of

religion, as opposed to an endorsement, the Establishment

Clause’s neutrality mandate applies here with equal force. We

are guided in our analysis by American Family Association,

one of only a handful of disapproval cases, which dealt with

another set of resolutions adopted by the San Francisco Board

of Supervisors. American Family Association treated disap-

proval and endorsement as flip-sides of the same coin—the

same legal tests and underlying First Amendment values

apply. We phrased the applicable principle in several ways—

the state may not disapprove of religion, express hostility

towards religion, nor inhibit religion, American Family Ass’n,

277 F.3d at 1121, 11224 —and used the three terms inter-

changeably.

4

The disapproval language appears to come from Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993), a Free

Exercise Clause case; the inhibit language is drawn from Lemon, see

Lemon, 403 U.S. at 612, and its predecessors, including School Dist. of

Abington Tp. v. Schempp, 374 U.S. 203, 222 (1963).

6588 CATHOLIC LEAGUE v. SAN FRANCISCO

A.

The first step in the Lemon analysis is to discern the gov-

ernment’s actual purpose in taking the challenged action—in

this case, adopting the Resolution. A “predominantly religious

purpose” violates the Establishment Clause. McCreary

County, 545 U.S. at 881. Government action, however, satis-

fies the purpose prong if it is “grounded in a secular purpose.”

Vasquez, 487 F.3d at 1255. Furthermore, “[a] legislature’s

stated reasons will generally get deference, [but] the secular

purpose required has to be genuine, not a sham, and not

merely secondary to a religious objective.” McCreary County,

545 U.S. at 864.

Catholic League argues that it is evident from the face of

the Resolution that the City’s predominant purpose was to

attack Catholic religious beliefs. The League points to the res-

olution’s harsh and forceful language as betraying the Board’s

true intentions: “discriminatory,” “defamatory,” “absolutely

unacceptable,” “hateful and discriminatory,” “insulting and

callous,” and “show[ing] a level of insensitivity and ignorance

which has seldom been encountered.” The Board counters

that, despite the inflammatory language, it passed the resolu-

tion for secular purposes.5

5

Our earlier cases held that even one secular purpose out of several was

sufficient. That is, government action failed “the purpose prong ‘only if

it [was] motivated wholly by an impermissible purpose.’ ” American Fam-

ily Ass’n v. City and County of San Francisco, 277 F.3d 1114, 1121 (9th

Cir. 2002) (quoting Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th

Cir. 1993). But see Vernon v. City of Los Angeles, 27 F.3d 1385, 1397 (9th

Cir. 1994) (“[W]e believe that the Supreme Court has articulated a slightly

more stringent test, which requires that the ‘actual’ or ‘primary’ purpose

of the government action be secular.”). McCreary County clarifies, how-

ever, that the inquiry is whether the government acted with a “predomi-

nantly” religious purpose. See McCreary County, 545 U.S. at 862

(“predominantly religious purpose”); id. at 863 (“predominant purpose of

advancing religion”); id. at 881 (“predominantly religious purpose”); id.

at 864 (secular purpose cannot be “merely secondary to a religious objec-

tive”).

CATHOLIC LEAGUE v. SAN FRANCISCO 6589

[4] As we explained in American Family Association, we

do not question whether the Board’s actions were wise;

“rather we determine the constitutionality of those actions.”

American Family Ass’n, 277 F.3d at 1122. See also Brown v.

Woodland Joint Unified School District, 27 F.3d 1373, 1382

(9th Cir. 1994) (“[O]nce the state is free to use a secular

means of attaining a goal, it is not required to use an alterna-

tive secular means that is less likely to be associated with reli-

gion.”). To be sure, the Board could have spoken with a

gentler tone, but the strength of the Board’s language alone

does not transform a secular purpose into a religious one. The

constitutional question remains whether the Board’s purpose

in adopting the Resolution was secular in nature. In other

words, we must first decide whether the Board’s purpose in

criticizing the Cardinal’s directive was disapproval of reli-

gious doctrine, or a call for non-discrimination in the adoption

of children, and second whether for Establishment Clause

purposes there is a difference between the two.6

“The eyes that look to purpose belong to an ‘objective

observer.’ ” McCreary County, 545 U.S. at 862 (quoting

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308

(2000)). The objective observer is “one presumed to be famil-

iar with the history of the government’s actions and compe-

tent to learn what history has to show.” Id. at 866. In so

describing the objective observer, the Supreme Court has

instructed that we cannot “cut the context” out of the purpose

inquiry. Id. at 864. Examining the Board’s resolution in con-

text, the district court correctly concluded that the objective

observer would ascertain a secular purpose behind the

Board’s adoption of the non-binding Resolution.7

6

We revisit the Resolution’s tone in the effects analysis, where the

choice of language may have a different impact.

7

Although the purpose test has always called on us to discern the gov-

ernment’s actual purpose, see American Family Ass’n, 277 F.3d at 1121;

Kreisner, 1 F.3d at 782, McCreary County recently sharpened the inquiry.

The Court announced that purpose must be evaluated from the perspective

6590 CATHOLIC LEAGUE v. SAN FRANCISCO

[5] The Board argues that its predominant purpose in

adopting the Resolution was to “denounce discrimination

against same-sex couples, and to try to preserve for San Fran-

cisco children the opportunity to be placed for adoption with

qualified families without regard to sexual orientation.” That

purpose is set out by both the title and preamble of the Reso-

lution. Indeed, the title states: “Resolution urging Cardinal

Levada to withdraw his directive to Catholic Charities forbid-

ding the placement of children in need of adoption with same-

sex couples.” And to emphasize, the preamble declares: “Res-

olution 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 direc-

tive that Catholic Charities of the Archdiocese of San Fran-

cisco stop placing children in need of adoption with

homosexual households.” This theme is born out in the open-

ing paragraph, which places the Resolution in the context of

San Francisco’s “existing and established customs and tradi-

tions such as the right of same-sex couples to adopt and care

for children in need,” and continues throughout the text,

of an objective observer. The Second Circuit has suggested that after

McCreary County the courts must now engage in two distinct inquires—

one to assess the government’s “actual” purpose, and another to ask how

“the government’s purpose is perceived by an objective observer.” Skoros

v. City of New York, 437 F.3d 1, 22 (2d Cir. 2006 ) (internal quotations

omitted). We do not read McCreary County as adopting a two part inquiry

for evaluating government purpose. By adopting an objective test, the

Court dismissed the petitioners’ assertion that “true ‘purpose’ is unknow-

able, and its search [is] merely an excuse for courts to act selectively and

unpredictably in picking out evidence of subjective intent.” McCreary

County, 545 U.S. at 861. As the Court explained, the purpose inquiry is

not an invitation to courts to cherry pick; instead, “scrutinizing purpose

does make practical sense, as in Establishment Clause analysis, where an

understanding of official objective emerges from readily discoverable fact,

without any judicial psychoanalysis of a drafter’s heart of hearts.” Id. at

862. Toward that end the Court noted that “[t]he eyes that look to purpose

belong to an ‘objective observer.’ ” Id. In other words, we use the objec-

tive observer—one who takes account of history and context—to discern

the government’s “actual” purpose.

CATHOLIC LEAGUE v. SAN FRANCISCO 6591

which explains that “[s]ame-sex couples are just as qualified

to be parents as are heterosexual couples.” It is apparent that

the Resolution is about non-discrimination in adoption.

In addition, the timing of the Resolution lends further con-

text and supports the Board’s asserted purpose. See McCreary

County, 545 U.S. at 866 (quoting Santa Fe, 530 U.S. at 315)

(“[R]easonable observers have reasonable memories, and our

precedents sensibly forbid an observer ‘to turn a blind eye to

the context in which [the] policy arose.’ ” (quoting Santa Fe,

530 U.S. at 315)). The Congregation for the Doctrine of the

Faith issued its clarion call against legalization of gay and les-

bian unions, as an exposition of religious belief, in 2003. It

was not until March 2006, days after Cardinal Levada

directed Catholic Charities, a social services agency in the

City of San Francisco, to stop placing children for adoption

with gay and lesbians couples, that the Board adopted this res-

olution. Keeping in mind the context in which the Resolution

arose, the objective observer would conclude that the Board’s

purpose in adopting the Resolution was to respond to a public

action that would affect both its gay and lesbian constituents,

as well as the children in the City and County’s jurisdiction.

The Board’s focus was on same-sex couples, not Catholics.

[6] Moreover, “[a] reviewing court must be ‘reluctant to

attribute unconstitutional motives’ to government actors in the

face of a plausible secular purpose.” Kreisner, 1 F.3d at 782

(quoting Mueller v. Allen, 463 U.S. 388, 394-95 (1983)). In

light of this proscription, and the Resolution’s focus on and

stated goal of protecting and promoting adoption by same-sex

couples, an objective observer would conclude that the

Board’s purpose was to champion needy children, gays, lesbi-

ans, and same-sex couples within its jurisdiction; not to offi-

cially disapprove of the Catholic faith or its religious tenets.

Catholic League maintains, however, that this is a distinc-

tion without a difference. It argues that the Board’s support

for same-sex adoption, and its basic underlying assumption

6592 CATHOLIC LEAGUE v. SAN FRANCISCO

that same-sex couples should be treated no differently than

heterosexual couples—and that anything less is discrimina-

tory, defamatory, and hateful—expresses hostility toward

their religious beliefs that homosexuality is “deviant,” and

“intrinsically disordered,” homosexual acts are “acts of grave

depravity,” homosexual unions are “clearly . . . immoral,” and

“[a]llowing children to be adopted by persons living in such

unions would actually mean doing violence to these children.”

As the district court noted, same-sex adoption is “a secular

dimension of the City’s culture and tradition that the City

believes is threatened by the specific directive issued to the

Archdiocese.” Catholic League, 464 F. Supp. 2d at 944. The

Board considers its Resolution as a secular message promot-

ing same-sex adoption—a message that is in accord with a

bevy of California and San Francisco laws and policies that

promote equal rights for gays and lesbians and their families,

see In re Marriage Cases, 43 Cal. 4th 757 (2008) (document-

ing the City and County of San Francisco’s involvement as a

plaintiff in the litigation to legalize same-sex marriage); Lock-

yer v. City and County of San Francisco, 33 Cal. 4th 1055

(2004) (holding that City and County officials lacked the

authority to issue marriage licenses to same-sex couples, a

practice they adopted at the Mayor’s direction); SF Admin.

Code § 62.1 (officially recognizing domestic partnerships);

SF Admin. Code § 12B1 (preventing entities that contract

with the City from discriminating on the basis of sexual orien-

tation, domestic partner status, or marital status), and resolu-

tions that denounce discrimination against gays and lesbians

from all sources, see infra pp.6599-6600 (listing San Fran-

cisco Board of Supervisors non-binding resolutions). To put

it plainly, what the Board considers secular, Catholic League

considers hostile to Catholic religious tenets.

[7] This dual characterization is not uncommon. Courts

have long recognized that certain secular beliefs, views, and

positions coincide with religious beliefs, views, and positions.

In such cases, government speech or action with respect to a

CATHOLIC LEAGUE v. SAN FRANCISCO 6593

secular issue is not considered endorsement of religion simply

because the government’s views are consistent with religious

tenets. That is, the same belief can have both religious and

secular dimensions; the government is not stripped of its secu-

lar purpose simply because the same concept can be construed

as religious. See McGowan v. Maryland, 366 U.S. 420, 442

(1961) (“[T]he ‘Establishment’ Clause does not ban federal or

state regulation of conduct whose reason or effect merely hap-

pens to coincide or harmonize with the tenets of some or all

religions. In many instances, the Congress or state legislatures

conclude that the general welfare of society, wholly apart

from any religious considerations, demands such regulation

. . . . [T]he fact that [a policy] agrees with the dictates of the

Judaeo Christian religions while it may disagree with others

does not invalidate the regulation.”); Bowen v. Kendrick, 487

U.S. 589, 612-13 (1988) (“On an issue as sensitive and impor-

tant as teenage sexuality, it is not surprising that the Govern-

ment’s secular concerns would either coincide or conflict with

those of religious institutions. But the possibility or even the

likelihood that some of the religious institutions who receive

Adolescent Family Life Act funding will agree with the mes-

sage that Congress intended to deliver . . . is insufficient to

warrant a finding that the statute on its face has the primary

effect of advancing religion.”); id. at 605 (noting that “pro-

mot[ing] adoption as an alternative [for adolescent parents]”

is an approach that is not “inherently religious, although it

may coincide with the approach taken by certain religions.”);

Brown, 27 F.3d at 1381 (“ ‘[M]ere consistency with religious

tenets is insufficient to constitute unconstitutional advance-

ment of religion.’ ” (quoting Smith v. Bd. of Sch. Comm’rs of

Mobile County, 827 F.2d 684, 692 (11th Cir. 1987))).8 In sum,

8

See also Okwedy v. Molinari, 150 F. Supp. 2d 508, 519-20 (E.D.N.Y.

2001) (rev’d in part Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003))

(“Government dissemination of a message of tolerance of diverse views

‘is an entirely appropriate secular effect,’ and its mere consistency or

inconsistency with the religious tenets of certain faiths is insufficient to

constitute an unconstitutional establishment of religion. . . . In criticizing

6594 CATHOLIC LEAGUE v. SAN FRANCISCO

if consistency with religious beliefs is not endorsement of

religion, inconsistency is not hostility to it.

Our opinion in American Family Association is particularly

instructive. In 1998, several religious groups sponsored a mul-

timedia advertising campaign titled “Truth in Love.” Ameri-

can Family Ass’n, 277 F.3d at 1118. The advertisement,

printed in the San Francisco Chronicle, stated that “God

abhors any form of sexual sin,” including homosexuality, and

claimed that Jesus Christ could help gays and lesbians

“walk[ ] out of homosexuality into sexual celibacy.” Id. at

1119. The ad also included “statistics” about homosexuality,

sexually transmitted infections, and “destructive behavior.”

Id.

In response to the ad campaign, the San Francisco Board of

Supervisors sent a letter to the plaintiffs (among other cam-

paign sponsors), stating that “Supervisor Leslie Katz

denounces your hateful rhetoric against gays, lesbians and

transgendered people,” and that “there is a direct correlation

between these acts of discrimination, such as when gays and

lesbians are called sinful and when major religious organiza-

tions say they can change if they tried, and the horrible crimes

committed against gays and lesbians,” such as the brutal mur-

der of Matthew Shepard. Id. The Board then adopted two

resolutions—one urging Alabama legislators to include sexual

orientation in their hate crimes legislation, and calling on the

“Religious Right to take accountability for the impact of their

long-standing rhetoric denouncing gays and lesbians,” id.; the

other addressing the advertisements. The second resolution

called the ad’s statistical assertions “erroneous and full of

a public message of intolerance of homosexuality, Molinari did not violate

the Establishment Clause.” (quoting Smith, 877 F.2d at 692)); Gheta v.

Nassau Co. Comm. College, 33 F. Supp. 2d 179, 186 (E.D.N.Y. 1999)

(“[I]t is not unconstitutional to criticize principles that happen to coincide

with the religious teachings of certain groups.”).

CATHOLIC LEAGUE v. SAN FRANCISCO 6595

lies,” and stated that the campaign encouraged maltreatment

of and violence against gays and lesbians. Id. at 1120.

[8] The plaintiffs, religious organizations, filed a § 1983

action against the Board, claiming that the letter and resolu-

tions violated the Establishment Clause by disapproving of a

“particular religion.” Id. On appeal we concluded that the

defendants’ actions had a plausible secular purpose and the

primary effect of the documents in question was “encouraging

equal rights for gays and discouraging hate crimes,” id. at

1121-23, not hostility “towards the religious view that homo-

sexuality is sinful or immoral,” id. at 1122 (emphasis added).

We recognized the dual nature of views on homosexuality,

and determined that San Francisco should not be hamstrung

in its public policy simply because its secular position was at

odds with certain religious views; that some perspectives on

gay and lesbian issues are rooted in religious belief cannot

overwhelm the fact that gay and lesbian issues are also secular

policy matters. Any other approach would stymie govern-

ment’s ability to take action on all “potentially religious

issues, including abortion, alcohol use, [and] other sexual

issues.” Id. at 1123. That is simply not the purpose or function

of the Establishment Clause. The government must maintain

neutrality among religions and between religion and non-

religion, but it cannot be held hostage to it. It is well within

the Board’s secular purview to promote adoptions of children

by same-sex couples and denounce discrimination for the

“general welfare of society.” McGowan, 366 U.S. at 442.

B.

[9] Although the Board’s purpose was secular, the resolu-

tion may still violate the Establishment Clause if it “has the

principal or primary effect of advancing or inhibiting reli-

gion.” American Family Ass’n, 277 F.3d at 1122. To ascertain

effect, we 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.”

6596 CATHOLIC LEAGUE v. SAN FRANCISCO

Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir.

1994). This inquiry is conducted “from the perspective of a

‘reasonable observer’ who is both informed and reasonable,”

American Family Ass’n, 277 F.3d at 1122 (quoting Kreisner,

1 F.3d at 784), and who is “familiar with the history of the

government practice at issue.” Kreisner, 1 F.3d at 784.9

[10] As discussed above, the Board’s unequivocal promo-

tion of non-discrimination against same-sex couples in adop-

tion is secular, regardless of whether the Catholic Church may

be opposed to it as a religious tenet. The question is whether

promotion of same-sex adoption is reasonably understood as

the primary message conveyed by the Resolution.10 It is not

enough that one might “ ‘infer’ ” disapproval of Catholic reli-

gious tenets; rather, disapproval or inhibition must “ ‘objec-

tively be construed as the primary focus or effect.’ ”

9

We previously encountered this observer in our purpose inquiry. Post-

McCreary County we turn to the objective observer to assess both purpose

and effect. The question arises whether these inquiries have substantially

merged. In both instances, the objective observer takes context and history

into consideration, ensuring that he addresses both questions from the

same nuanced, contextualized perspective. Two differences remain, how-

ever. First, whereas in the purpose inquiry, we are “ ‘reluctant to attribute

unconstitutional motives’ to government actors in the face of a plausible

secular purpose.” Kreisner, 1 F.3d at 782 (quoting Mueller v. Allen, 463

U.S. 388, 394-95 (1983)), no such presumption applies in the effects anal-

ysis. Moreover, the objective observer must be presumed to understand the

difference between what the government intends and what it produces.

The purpose prong asks what message the government meant to convey,

while the effects prong asks what message the government actually con-

veyed. Lynch, 465 U.S. at 690 (O’Connor, J., concurring). Given the

salience of San Francisco’s history of gay and lesbian advocacy to each

inquiry, the two questions are closely related here.

10

As an initial matter, we note that it is not immediately obvious that a

non-binding resolution has any “effects.” By definition, it imposes no reg-

ulation or obligation. Establishment Clause cases, however, regularly turn

on symbolism. Just as a holiday display can convey a message, so too a

non-binding resolution.

CATHOLIC LEAGUE v. SAN FRANCISCO 6597

American Family Ass’n, 277 F.3d at 1122 (quoting Vernon,

27 F.3d at 1398-99).11

[11] The primary message conveyed by the Resolution

turns in large part on the scope of the lens through which we

view it. We believe that a sufficiently broad lens is essential.

We must read the Resolution “as a whole,” American Family

Ass’n, 277 F.3d at 1122; its message can be affected by its

context and must be analyzed given its “unique circum-

stances.” Lynch, 465 U.S. at 694 (O’Connor, J., concurring).

To be sure, there are statements in the Resolution that, taken

in isolation, may be said to convey disparagement towards the

Catholic Church. But to be violative of the Establishment

Clause, those statements must overwhelm the Resolution’s

secular dimensions. Considering the Resolution as a whole,

with its focus on the City’s tradition of promoting and defend-

ing same-sex relationships, they do not.

[12] Again, Catholic League argues that the Board’s harsh

language conveys a message of disapproval. As we explained

above, generally, the Resolution’s strong language speaks to

its secular message: “denounc[ing] discrimination against

same-sex couples” and supporting adoption by such couples

of children in need. The Resolution, however, also targets the

statement, attributed to Cardinal Levada and the Vatican that

“Allowing children to be adopted by persons living in such

11

Catholic League argues that if the Resolution conveys any message of

hostility towards the Catholic religion—be it secondary, tertiary, or

otherwise—the Resolution fails the Lemon test, and the district court erred

as a matter of law in concluding that the Board’s primary purpose is dis-

positive. Catholic League’s argument is unavailing. Our precedents make

clear that we treat inhibition no differently than advancement; we are

tasked with determining whether the primary effect of the challenged gov-

ernment action endorses or disapproves of religion or a religion. See, e.g.,

American Family Ass’n, 277 F.3d at 1122 (“[T]he focus of this prong is

on the primary effect of the government’s conduct.”) (emphasis in origi-

nal); Vernon, 27 F.3d at 1398 (“[T]he key consideration in this second

prong analysis is whether the government action ‘primarily’ disapproves

of religious beliefs.”).

6598 CATHOLIC LEAGUE v. SAN FRANCISCO

unions would actually mean doing violence to these children,”

and calls it, among other things “absolutely unacceptable to

the citizenry of San Francisco.” That statement comes from

the Considerations document, which the complaint explains is

an exposition of Catholic religious tenets. Standing alone,

therefore, an objective observer might conclude that the

Board was expressing disapproval of Catholic religious belief,

rather than endorsing a secular position. But the statement

does not stand alone. It is embedded in the larger Resolution

which is primarily a defense of same-sex adoption. That one

statement cannot fairly be said to embody the Resolution’s

primary message.

[13] The Resolution also urges “Archbishop Niederauer

and the Catholic Charities of the Archdiocese of San Fran-

cisco to defy all discriminatory directives of Cardinal Leva-

da,” and 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.”

Catholic League argues that those statements express disap-

proval of religion/Catholicism, and that they are not incidental

to the primary message, but rather they define the message.

We agree with the district court’s observation that “[t]he fact

that the City was commenting on the policy of the Archdio-

cese in this regard does not violate the Establishment Clause

simply because the secular activity [i.e. adoption] was being

performed by a religious organization.” Catholic League, 464

F. Supp. 2d at 945 (citing Bowen, 487 U.S. at 613).12 In any

event, however, given the Resolution’s primary message of

promoting same-sex adoption, any hostility conveyed towards

12

To be clear, we do not distinguish between religious beliefs and

implementation of those beliefs. The directive, as far as the Catholic

Church is concerned, may very well be just as “religious” as statements

of belief in the Considerations document. The Board’s statements with

respect to the directive may nonetheless be secular and convey a message

of non-discrimination in adoption.

CATHOLIC LEAGUE v. SAN FRANCISCO 6599

particular Catholic tenets by those statements was secondary

at best.

The Board’s extensive and persistent practice of passing

non-binding resolutions denouncing discrimination against

gays and lesbians also shapes the message the Resolution con-

veys. The Board’s secular defense of same-sex couples in all

aspects of life is the dominant theme of the Board’s actions.

See Resolution No. 73-0513 (“Resolution urging the Supreme

Court of the United States to rescind their refusal and to

accept the hearing of a legal challenge to Florida’s prohibition

of adoption of children by gays and lesbians”); Resolution

No. 129-06 (“Resolution urging the IRS to reconsider their

ruling on Domestic Partners and Community Property”); Res-

olution No. 166-06 (“Resolution urging Governor Schwar-

zenegger to submit amicus brief to New York Supreme Court

of Appeals in support of the right of same-sex civil mar-

riage”); Resolution No. 364-06 (“Resolution condemning the

government sanctioned violence and chaos which took place

during Moscow’s first Gay Pride march”); Resolution No.

127-05 (“Resolution urging . . . Secretary of Education to

publicly apologize to gay, lesbian, bisexual, and transgender

community”); Resolution No. 454-05 (“Resolution condemn-

ing the offensive and discriminatory training video shown to

San Francisco 49er players”); Resolution No. 308-03

(“Resolution urging Senator Rick Santorum to step down

from his leadership position in the Republican Party and to

apologize for his comments [comparing homosexuality to

polygamy, incest, and adultery]”); Resolution No. 199-00

(“Resolution urging Dr. Laura Schlessinger to refrain from

making inaccurate statements about gays and lesbians that

incite violence and hate”); see also American Family Ass’n,

13

The district court took judicial notice of these resolutions as matters

of public record, see Catholic League, 464 F. Supp. 2d at 941, as do we.

Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“[A] court

may take judicial notice of matters of public record” (internal quotation

omitted)).

6600 CATHOLIC LEAGUE v. SAN FRANCISCO

277 F.3d at 1119-23 (concluding that a letter and two resolu-

tions by the San Francisco Board of Supervisors criticizing

religious groups for denouncing homosexuality did not violate

the Establishment Clause).

[14] Just as the “overall holiday setting” can change the

message conveyed by a crèche, and a “typical museum set-

ting, though not neutralizing the religious content of a reli-

gious 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 non-

discrimination as to gays and lesbians. An objective observer

would understand as much.

C.

[15] Last, we consider whether government action

“foster[s] excessive governmental entanglement with reli-

gion.” Vasquez, 487 F.3d at 1255. “Administrative entangle-

ment typically involves comprehensive, discriminating, and

continuing state surveillance of religion.” Vernon, 27 F.3d at

1399. Entanglement in the form of “political divisiveness,”

that is, government actions that cause the public to fracture

along religious lines, “ ‘has never been relied upon as an inde-

pendent ground for holding a government practice unconstitu-

tional.’ ” American Family Ass’n, 277 F.3d at 1123 (quoting

Brown, 27 F.3d at 1383).

Catholic League’s primary argument is that the resolution

fosters excessive entanglement by taking “an official position

on religious doctrine,” and that the Board has attempted to

“improperly influence Church authority and meddle in

Church affairs.” The case cited by Catholic League, Commack

Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d

CATHOLIC LEAGUE v. SAN FRANCISCO 6601

Cir. 2002), simply does not support its argument that the

Board’s non-binding Resolution fosters excessive entangle-

ment.

Commack held that New York’s statutes prohibiting fraud

in the sale of kosher food violated the Establishment Clause

by fostering excessive entanglement. Id. at 425. The Second

Circuit concluded that the laws “excessively entangle govern-

ment and religion because they (1) take sides in a religious

matter, effectively discriminating in favor of the Orthodox

Hebrew view of dietary requirements; [and] (2) require the

State to take an official position on religious doctrine . . . .”

Id.

[16] The laws challenged in Commack are different in kind

than the Board’s Resolution here. New York’s kosher fraud

laws took sides in a religious matter in that they took one defi-

nition of kosher, codified it, and regulated it, to the exclusion

of other competing doctrines of kashrut within Judaism.14 See

id. at 426. The laws took an official position on religious doc-

trine because determining whether each food article met

kashrut’s requirements, the State had to “either interpret reli-

gious doctrine or defer to the interpretations of religious offi-

cials.” Id. at 427. By contrast, 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 doc-

trine.” The Board expressed its secular view in a non-binding

resolution on a matter of public policy.

Nor does the Resolution attempt to influence Church policy

in a way that creates excessive entanglement. To be sure, the

Establishment Clause prohibits government from intervening

14

As explained in Commack, “kashrut” is “the Hebrew noun from which

the term ‘kosher’ is derived,” and “encompasses the entire body of rules

relating to foods that may be consumed as well as to the preparation of

those foods” under this “centuries-old Jewish law.” Commack, 294 F.3d

at 418.

6602 CATHOLIC LEAGUE v. SAN FRANCISCO

in a religious dispute. The federal courts “are not arbiters of

scriptural interpretation.” Thomas v. Review Bd., 450 U.S.

707, 716 (1981). But the Board has not crossed that line with

its non-binding resolution; the resolution enacts no policy or

regulation—it is simply a statement of the Board’s position on

same-sex adoption.15

IV.

“[I]t is inevitable that the secular interests of government

and the religious interests of various sects and their adherents

will frequently intersect, conflict, and combine.” Wallace v.

Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring in

judgment). Invalidating government action where this inci-

dental overlap is present would create “chaos,” id. at 70, and

cripple the government’s ability to take “action that affect[s]

[all] potentially religious issues, including abortion, alcohol

use, [and] other sexual issues.” American Family Ass’n, 277

F.3d at 1123. The rights of same-sex families are no different.

[17] Properly contextualized, the Resolution does not have

the purpose or primary effect of expressing hostility towards

Catholic religious beliefs, and it does not foster excessive

government entanglement with the Catholic Church. Accord-

ingly, the judgment of the district court is AFFIRMED.

15

The complaint also alleged that the Board “threatened to withhold

funding from Catholic Charities of the Archdiocese of San Francisco if

they do not violate Church teaching and oppose Church authority.” The

district court did not address this allegation in its Lemon analysis. Catholic

League’s cursory reference to this allegation in its brief is not an argument

as to why this allegation supports an Establishment Clause violation;

therefore we consider this allegation abandoned as a basis for Catholic

League’s Establishment Clause claim.

CATHOLIC LEAGUE v. SAN FRANCISCO 6603

BERZON, Circuit Judge, concurring:

I concur in the majority’s opinion, as it carefully and faith-

fully applies contemporary Establishment Clause jurispru-

dence to an unusual circumstance, the disapproval rather than

approval of religion, embodied in a single Board of Supervi-

sors resolution linked to no affirmative governmental regula-

tion nor displayed in any continuing fashion in any public

location.

In particular, this case is largely controlled by American

Family Association v. City and County of San Francisco, 277

F.3d 1114 (9th Cir. 2002), which also involved San Francisco

Board of Supervisors resolutions supporting equality for gays

by calling upon persons with religious views to the contrary

— in that instance, calling on the “Religious Right,” to cease

denouncing and opposing tolerance toward gays and lesbians.

Similarly to the Resolution here at issue, the ones in American

Family denounced religion-based anti-gay views as “ ‘errone-

ous and full of lies,’ ” and denounced anti-gay advertisements

by “the Religious Right” as “ ‘creat[ing] an atmosphere which

validates oppression of gays and lesbians,’ ” and encouraging

mistreatment of and violence toward them. Id. at 1119-20.

The American Family majority recognized that “the docu-

ments contain statements from which it may be inferred that

the [supervisors] are hostile towards the religious view that

homosexuality is sinful or immoral,” id. at 1122, but con-

cluded that, as a whole, the primary effect of the documents

was “encouraging equal rights for gays and discouraging hate

crimes,” id. at 1122-23, and that, as here, “[t]he excessive

entanglement prong does not easily fit the current case.” Id.

at 1123.

The only possible basis for a different outcome in this case

than in American Family is that Establishment Clause law has

been slightly refined since American Family, and now

requires, for the purpose prong of the analysis, that the gov-

ernmental action not have a predominantly religious purpose,

6604 CATHOLIC LEAGUE v. SAN FRANCISCO

rather than that the governmental action be “motivated wholly

by an impermissible purpose.” Id. at 1121. See McCreary

County v. ACLU, 545 U.S. 844, 862-63 (2005). But the secu-

lar purpose here is considerably more evident than in Ameri-

can Family, as the Resolution was directed not simply at

expression of opinion but at urging a particular, secular result

— that Catholic Charities place adoptive children with same-

sex couples. That purpose is plainly the predominant one,

although the Resolution does criticize a Vatican document

disapproving adoptions by same-sex couples. I therefore see

no basis for distinguishing American Family on the basis of

McCreary, as any difference in the strength of the secular pur-

pose cuts in favor of a stronger secular purpose here, suffi-

cient to meet the McCreary standard.

All of that said, I do find the result troublesome, and find

much to agree with in Judge Noonan’s eloquent dissent in

American Family. See American Family, 277 F.3d at 1126-28

(Noonan, J., dissenting). In particular, I am acutely aware that

“the Constitution assures religious believers that units of gov-

ernment will not take positions that amount to the establish-

ment of a policy condemning their religious belief,” id. at

1126, and that resolutions such as the ones in American Fam-

ily and the one in this case are near — if not at — the line that

separates establishment of such a policy.

For that reason, I think it critical that the result in American

Family and in this case be understood as limited by three con-

siderations — first, that no regulation at all was attached to

the resolutions — they were purely speech, albeit governmen-

tal speech; second, that the speech was broadcast to the pub-

lic, as far as appears in the opinions, only by the enactment

of the resolution itself, and not in any other, more intrusive

and permanent way — for example, through plaques in public

places, or advertisements in newspapers or on radio; and

third, that the resolutions were not repeated or pervasive, but

discrete. If any of these circumstances were different, I would

think that the notion that there was an establishment of reli-

CATHOLIC LEAGUE v. SAN FRANCISCO 6605

gion rather than the predominant pursuit of a secular purpose

with a predominantly secular effect would have considerably

more force, and the result might be otherwise. So, for exam-

ple, a pervasive public campaign by a city to condemn Jews

for not shopping on Saturday or Muslims from observing

Ramadan because of the effect on the economy would proba-

bly trigger Establishment Clause concerns not here present.

We need not address such matters here, however, as the Reso-

lution, as far as the record shows, was passed but then left

dormant, and so did not pervade public perception of Catholi-

cism or Catholics as would a public advertisement campaign.

With those caveats, I concur in the opinion.