noting that the reso- lutions at issue “were not repeated or pervasive, but dis- crete”
How later courts described this case
- noting that the reso- lutions at issue “were not repeated or pervasive, but dis- crete”
- applying the familiar Lemon test
Written by the judges who cited it.
The opinion
BERZON, Circuit Judge,
concurring:
I concur in the majority’s opinion, as it carefully and faithfully applies contemporary Establishment Clause jurisprudence to an unusual circumstance, the disapproval rather than approval of religion, embodied in a single Board of Supervisors resolution linked to no affirmative governmental regulation 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 “ ‘erroneous and full of lies,’ ” and denounced anti-gay advertisements by “the Religious Right” as “ ‘creating] 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 documents contain statements from which it may be *609 inferred that the [supervisors] are hostile towards the religious view that homosexuality is sinful or immoral,” id. at 1122 , but concluded 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 governmental action not have a predominantly religious purpose, 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 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005). But the secular purpose here is considerably more evident than in American 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 purpose cuts in favor of a stronger secular purpose here, sufficient 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 government will not take positions that amount to the establishment of a policy condemning their religious belief,” id. at 1126 , and that resolutions such as the ones in American Family 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 considerations — first, that no regulation at all was attached to the resolutions — they were purely speech, albeit governmental speech; second, that the speech was broadcast to the public, 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 religion 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 example, 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 probably trigger Establishment Clause concerns not here present. We need not address such matters here, however, as the Resolution, as far as the record shows, was passed but then left dormant, and so did not pervade public perception of Catholicism or Catholics as would a public advertisement campaign.
With those caveats, I concur in the opinion.