# Petition for Writ of Certiorari — Catholic League for Religious & Civil Rights v. City & County of San Francisco

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 974

## Text

Supreme
P F | s ak US.

NI,
No. OFFICE OF THE CLEQK

$n the Supreme Court of the Anited States

ATHOLIC LEAGUE FOR RELIGIOUS AND CIV]
RIGHTS, DR. RICHARD SONNENSHEIN
VALERIE MEEHAN

CITY AND COUNTY OF SAN FRANCISCO, AARON
PESKIN, in his official capacity as President, Board of
supervisors for San Francisco, and TOM AMMIANO
his official capacity as a Supervisor, Board of
as

| od a
Supervisors for»

an Irancisco.

PETITION FOR WRIT OF CERTIORAR

BERT JOSEPH MUI
Counsel of Record
['HOMAS More Law Cent!
24 FRANK LLoyD Wricut D)
P.O. Box 393
ANN ArBor, MI 481
(734) 827-2001

muise@thomasmo}

Mebruary lod, 20]

Recker Gallagher Cin . las { 800.890. 500

QUESTIONS PRESENTED

An en banc panel of the U.S. Court of Appeals for
the Ninth Circuit was presented with the question of
whether an official resolution (Resolution 168-06)
unanimously passed by the Board of Supervisors for
the City and County of San Francisco that expressly
condemned the religion of its Catholic citizens violates
the Establishment Clause. In a fractured opinion,
three judges found that Petitioners had standing and
should prevail on the merits; three judges found that
Petitioners had standing and should not prevail on the
merits; and five judges found that Petitioners lacked
standing and thus did not reach the merits of the

Establishment Clause claim

1. Whether the Court’s modern [Establishment
Clause jurisprudence involving government

speech—whether explicit or symbolic—is unworkable
and leads to inconsistent results such that a

substantial revision is necessary to ensure uniformity

of decisions by the lower court

Resolution 168-06 is set

petition

The confusion over standing is a direct result of the flawed
jurisprudence that produced it. Indeed, “offended observer”
standing is made possible by the endorsement test, which Justice
O’Connor created in Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(O’Connor, J., concurring). But see Cnty. of Allegheny v. ACLU,
492 U.S. 573, 669 (1989) (Kennedy, J., concurring in judgment in
part and dissenting in part) (“|T]he endorsement test is flawed in
its fundamentals and unworkable in practice. The uncritical
adoption of this standard ts every bit as troubling as the bizarre
result it produces in the cases before us.”)

Whether a doublk Standaara eXI1SU!

|

E
speech that disfavors religion, requiring the Court t

stablishment Clause challenges to governmet

resolve the conflict by clarifying its jurisprudence ai
setting forth the appropriate test for such case:

3. Whether the Court should summarily reve)
the en banc decision because it directly and sharply
conflicts with controlling law and perpetuates
regrettable perception that the Establishment Cl

is hostile toward religion

ONnaGe!n
incisco (“San Francisco’ or “City”), Aaron Pe

official capacity as President, Board of S
|

r San Francisco, and Tom Ammiuano, 1n his

pacity as a Supervisor, B

TABLE OF CONTEN’

ESTIOD} PRESENTE
LRTI HI ROCE]
A | } < ) NT]

|} i

NION BI
RISDI¢
INSTITUTI

TEMENT ¢ CH
it
ll <

REASONS FOR GRANTING THE PETITIO

THE COURT'S CURRENT ESTABLISHMENT
CLAUSE JURISPRUDENCE ISIN DISARRAY
AND LEADS TO “SILLY” RESULTS THAT
ARE INCONSISTENT WITH OUR NATION’S
HISTORY AND TRADITIONS

THE COURT SHOULD ADOPT A
RATIONAL BASIS STANDARD OF REVIEW
FOR GOVERNMENT “RELIGIOUS”
SPEECH THAT IS REASONABLY

RELATED TO OUR NATION’S HISTO!
AND TRADITIONS

THE COURT SHOULD ADOPT A STRIC1
SCRUTINY STANDARD OF REVIEW FOR
GOVERNMENT “RELIGIOUS” SPEECH
THAT IS NOT REASONABLY RELATED
TO OUR NATION’S HISTORY AND
TRADITIONS.

THE EN BANC DECISION CONFLICTS WIT!
DECISIONS FROM THIS COURT AND
OTHER CIRCUIT COURTS, AND I11
PRESENTS AN ISSUE OF NATIONAI
IMPORTANCE

THE ESTABLISHMENT CLAUSE
SHOULD N OT TOLERATE

GOVERNMENT SPEECH THAT
EXPRESSLY DISFAVORS RELIGION

THE EN BANC DECISION DIRECTLY AND
SHARPLY CONFLICTS WITH
ESTABLISHED PRECEDENT AND
PROMOTES A PERCEPTION THAT THE
LAW {S HOSTILE TOWARD RELIGION

CONCLUSION
APPENDIX
Opinion, United States Court

Appeals for the Ninth Circuit
(October 22, 2010)

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(LLY OF OC n ile;
08-56415, 08-5643¢
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~~
YUS

Out Leaes mraawinai ‘ Lbil
evada, in fits capacity as head of th
ongpregation for the Doctrine of the Fatt

( the Vatican, lo withdrau hj

liscriminatory and defamatory direct
hat Catholic Charities of the Archdiocese

fSan Francisco stop placing children

eed ot adoptie
! Us hold
s i
( " { mee ip Ti 1
Re the Vatican eddl

negatively influence

existiny L est

aOli . pic il \
hildren” are absolutely unacceptabl
» the citizenry of San Francisco

VHEREAS, Sucl hateful
liscriminatory rhetoric 1
insulting and callous, and shows
evel of insensitivity and ignorane
vhich has seldom been encount
® s Board of Su}
VHEREAS, San 1
ualified to b pare

eTerosceyxi |

VHEREAS, Cardinai UC
decidedly unqualified representatii

f his former home city, and of tl
people of San Francisco

y 77 oY
4 4 ¥ sy
Y /LOta dea

VHEREAS, Thi a

rges Archbishop Niederauer and
atholic Chanities of the Archdiocs
an Francisco t¢ defy

liscriminatory directives

HSOLVED
ipervisors urges Cardinal Wallia
evada, in his capacity as head of t

‘ongregation for the Doctrine of the Fait

it the Vatican (formerly known as Hol
Office of the Inquisition), to withdrav
his discriminatory and defamatory

tive that Catholic Charit}

}

Archdiocese of San Francisco stop placing
children in need of adoption with
homosexual households.’

It is important to bear in mind that the
“discriminatory directive” that was the subject of this
resolution was from the Congregation for the Doctrine
of the Faith to a Catholic organization. I[t was not
directed to the City, any other governmental entity o1
agency, or other private party

Petitioners object to and have been injured by the
anti-Catholic resolution adopted by the City. The
City’s resolution attacks Petitioners’ deeply held
religious beliefs, conveys an _ impermissible,
government-sponsored message of disapproval of and
hostility toward the Catholic religion, and sends a
clear message to Petitioners that they are outsiders
not full members of the political community. App. 7a

Petitioners Sonnenshein and Meehan have had
direct contact with and have been injured by the
offending resolution, which stigmatizes Petitioners on
account of their religious beliefs. Petitioners
Sonnenshein and Meehan, who are citizens and
municipal taxpayers of San Francisco, have been
injured by the abuse of government authority and the
misuse of the instruments of government to criticize,
demean, and attack their religion and religious beliefs,
thereby chilling their access to the government. As :
result of the City’s anti-Catholic resolution, Petitioner

S.F. Res. No. 168-06 (Mar. 21, 2006), available ;
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutionsO6/1
0168-06.pdf. (emphasis added)

nnenshein and Meehan have and will continue
curtail their activities to lessen their contact with
Respondents, thereby causing further harm
Petitioner Catholic League, through its members, ha
been similarly injured and harmed by Respondent
ictions. See App 43a

The effect of the City’s anti-Catholic resolution
which remains posted on the City’s official website, is
the same as posting a large sign on the front door to
city hall reading, “Catholics are not welcome in San
Francisco.” See App. 16a-17a, n.33 (“The government

[cannot] condemn religion by erecting a gigantic sign

on city hall of a cross with a line through it: a ‘no
Christianity sign with the design of a ‘no smoking’
sign. The Board’s resolution accomplishes the same
thing as the aforementioned sign, but even mor
plainly and unambiguously.”

Pope Paul III established the Congregation f

the Doctrine of the Faith a half millennium ag:

[t safeguards and promotes Catholic doctrine o1
faith and morals. In 2003, the Congregatior
addressed homosexual marriage and adoption
concluding that both were immoral, and that it
was the moral duty of Catholics to oppose both
To carry out this doctrinal decision, Cardinal!
William Joseph Levada directed the Archdiocese
of San Francisco that Catholic agencies should
not place children for adoption in homosexual
households San Francisco immediately
responded with official hostility. The San
Francisco Board of Supervisors adopted thi

aa)

esolution giving rise to this lawsuit

| i -_ , r iL .
resolution urges the Cardinal to withdraw

instructions; denounces the Cardinal’s directiv

as “meddl[ing]” by a “foreign country”; calls
“hateful,” “insulting,” and “callous”; and urg

the local archbishop and Catholic Chariti
‘defy” the Cardinal’s instruct

The Procedura

Petitioners sued the City, claiming that this offic

>
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|

sovernment resolution violates the Establishment
Clause. The district court dismissed the lawsuit fo.
failure to state a claim upon which relief could b
granted, App. 115a-138a, and a panel of the Ninth
Circuit initially affirmed, App. 86a-114a. The Ninth
Circuit then voted to rehear the case en banc, Ap]
84a-85a, and affirmed the district court’s dismissal «
differing grounds, as noted previously, App. la-83

REASONS FOR GRANTING THE PETITION

THE COURT’S CURRENT ESTABLISHMENT
CLAUSE JURISPRUDENCE IS IN DISARRAY
AND LEADS TO “SILLY” RESULTS THAT
ARE INCONSISTENT WITH OUR NATION’S
HISTORY AND TRADITIONS.

Courts modern Establishment
at : . _ - T~ +4 ype 7? Darcon)} . ,
jurisprudence isin “hopeless disarray,” Rosenberger
Rector & Visitors of Univ. of Va., 515 U.S. 819, 86
1995) (Thomas, J., concurring in the judgment
in need of “[s]ubstantial revision,” Cnty. of Alleghen
ACLU, 492 U.S. 573, 656 (1989) (Kennedy
YCUrTINE IT part ind dissent , : ~ a,

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384, 399 (1993) (Scalia, J., concurring in the
judgment) (“I agree with the long list of constitutional
scholars who have criticized Lemon and bemoaned the
strange Establishment Clause geometry of crooked
lines and wavering shapes its intermittent use has
produced.”)

This case 1s a “poster child” for the inconsistent
results caused by the Court’s muddled Establishment
Clause case law. Thus, it provides an opportunity to
abandon this unworkable jurisprudence in favor of one
that respects our Nation’s religious heritage, history,
and traditions and that eschews the “crooked lines and
wavering shapes” produced by the status quo
Unfortunately, under the current jurisprudence, the
closest measure for predicting the outcome of a
particular case is the personal predilections of the
judge or judges deciding it. Van Orden v. Perry, 545
U.S. 677, 697 (2005) (Thomas, J., concurring) (“The
unintelligibility of this Court’s precedent raises the
further concern that, either in appearance or in fact,
adjudication of Establishment Clause challenges turns
on judicial predilections.”)

While a majority of the en banc Court found that
Petitioners had standing to advance their
Establishment Clause claim,’ that ruling is hollow
comfort given the fact that the circuit court also
confirmed the constitutionality of the City’s anti

As Circuit Judge Kleinfeld noted in his majority opinion o!
standing, “it would be outrageous if the government of San
Francisco could condemn the religion of its Catholic citizens, yet
those citizens could not defend themselves in court against their

rovernment’s preferment of other religious views.” App. 8a

Catholic resolution. This ruling on the merits is
troubling given that under this Court’s extant
jurisprudence, “a mere message of disapproval, even in
the absence of any coercion,’ allegedly suffices for an
Establishment Clause violation under Lemon.” See
App. 27a; see Lynch v. Donnelly, 465 U.S. 668, 690
(1984) (O’Connor J., concurring in the judgment) (“The
purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or
disapprove of religion. The effect prong asks whether,
irrespective of the government’s actual purpose, the
practice under review in fact conveys a message of
endorsement or disapproval. An affirmative answer to
either question should render the challenged practic«
invalid.”).

As Circuit Judge Kleinfeld appropriately observes

The “message” in the resolution, unlike, say, th
message that might be inferred from some
symbolic display,* is explicit: a Catholic doctrine

Though not yet adopted by a majority opinion from this Court,
a test focusing on actual legal coercion, rather than endorsement,
would perhaps be more faithful to the original meaning of the
Establishment Clause. See Van Orden, 545 U.S. at 693 (Thomas,
J., concurring); Lee v. Weisman, 505 U.S. 577, 640-43 (1992)
(Scalia, J., dissenting). Indeed, coercion could be found here as
between the City and the Archdiocese of San Francisco, to which
Petitioners, as Catholics, are members. Nevertheless, as the
Court’s jumsprudence currently stands, the endorsement enquiry
does not require coercion

‘lt is perhaps ironic (and no doubt tragic for the family member:
of the servicemen and servicewomen who are honored by the Mt
Soledad war memorial) that the Ninth Circuit recently held
unconstitutional the longstanding display of a cross atop Mt

duly communicated by the part of the Catholi
church in charge of clarifying doctrine
“hateful,” “defamatory,” “insulting,” “callous,”
and “discriminatory,” showing “insensitivity and
ignorance, the Catholic Church is a hateful
foreign meddler in San Francisco’s affairs, the
Catholic Church ought to “withdraw” it:
religious directive, and the local archbishop
should defy his superiors directive. This is
indeed a “message of... disapproval.” And that
is all it takes for it to be unconstitutional

App. 27a-28a (emphasis added)

Justice Thomas summed it up best in
concurring opinion in Elk Grove Unified Sch. Dist. t
Newdow, 542 US. 1, 45 nl (2004) “Our
jurisprudential confusion has led to results that can

only be described as silly.” (Thomas, J., concurring in
the judgment) (emphasis added); see also Edwards |
Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J

dissenting) (criticizing the Court’s “embarrassi1

Establishment Clause jurisprudence”

Indeed, inconsistent results—results which tend t

sfavor religion and thus call into question the ver

Soledad in San Diego, California—a passive symbol that is an
integral part of a national war memorial. See Trunk v. City of San
Diego, Nos. 08-56415, 08-56436, 2011 U.S. App. LEXIS 53 (9th
Cir. Jan. 4, 2011). As Circuit Judge Kleinfeld accurately noted in
the present case, “Symbols endorsed or adopted by a government
are often ambiguous, but the words in this resolution are not
App. 16a-17a, 0.33

foundation of the Court’s jurisprudence’—in the
inferior federal courts can be directly attributed to the
insufficient and inconsistent guidance given to them
by this Court. See, e.g., ACLU v. Schundler, 168 F.3d
92, 113 (3d Cir. 1999) (dissent) (“Until the Supreme
Court decides a case in which a majority opinion of the
Court utilizes a clear test to analyze a religious
display, we are left with fact-specific inquiries that
focus on the size, shape, and inferential message
delivered by displays with religious elements, leaving
almost any display that has a religious symbol in it
open to challenge and any such display that has
secular elements, no matter how trivial, open to
judicial approval.”); Doe v. Duncanville Indep. Sch.
Dist., 994 F.2d 160, 166 n.7 (5th Cir. 1993) (“We have
eschewed the tripartite Lemon analysis in favor of a
more case-bound approach because we believe that a
fact-sensitive application of existing precedents is
more manageable and rewarding than an attempt to
reconcile the Supreme Court’s confusing and confused
Establishment Clause jurisprudence.”); Am. Jewish
Congress v. Chicago, 827 F.2d 120, 130 (7th Cir. 1987)
(Easterbrook, J., dissenting) (“It would be appalling to
conduct litigation under the Establishment Clause as

See McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 889 (2005)
(Scalia, J., dissenting) (“Nothing stands behind the Court’s
assertion that governmental affirmation of the society’s belief in
God is unconstitutional except the Court’s own say-so, citing as
support only the unsubstantiated say-so of earlier Courts going
back no further than the mid-20th century.”); see also Green v.
Haskell Cnty. Bd. of Comm'rs, 574 F.3d 1235, 1236 n.2 (10th Cir
2009) (Kelly, J., dissenting from denial of rehearing en banc) (“A
mode of analysis that ignores this tradition of acknowledgment,
and the original understanding of the Establishment Clause that
it suggests, is suspect at best.”)

1]

if it were a trademark case, with experts testifying
about whether one display is really like another, and
witnesses testifying they were offended—but would
have been less so were the créche five feet closer to the
jumbo candy cane.”); Bauchman v. West High Sch., 132
F.3d 542, 551 (10th Cir. 1997) (“To the extent the
Supreme Court has attempted to prescribe a general
analytic framework within which to. evaluate
Establishment Clause claims, its efforts have proven
ineffective.”); Green v. Haske!l Cnty. Bd. of Comm’rs,
574 F.3d 1235, 1245 (10th Cir. 2009) (Gorsuch, J.,
dissenting from denial of rehearing en banc) (“[UJntil
our superiors speak, we leave the state of the law “in
Establishment Clause purgatory.”) (quoting ACLU v.
Mercer Cnty., 432 F.3d 624, 636 (6th Cir. 2005)).

This case presents an opportunity for the Court to
revise its Establishment Clause jurisprudence in cases
involving government speech in the context of
reviewing for the first tume a case involving speech that
disfavors religion. See App. 20a (“We have not found
another Establishment Clause case brought by people
whose religion was directly condemned by their
government.”). Petitioners suggest that (a) in cases of
government speech that is rationally related to our
Nation’s long history and tradition of recognizing and
accommodating religion, such as those involving the
display of religious symbols during national holidays,°

© See Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (“The créche in
the display depicts the historical origins of this traditional event
long recognized as a National Holiday.”).

Ten Commandments displays,’ the use of a cross in a
war memorial,” legislative prayer,’ or the use of words
such as “under God” in the pledge of allegiance or “In
God We Trust” in our national motto,’ the Court
should adopt a rational basis standard of review; and
(b) in cases that do not meet this’ threshold
requirement, such as those involving government
speech that expresses hostility toward religion as
illustrated by the anti-Catholic resolution at issue
here, a strict scrutiny standard should apply. See sec
I. B., infra. Such an approach is consistent with our
history and traditions and the construct of the First
Amendment. See, e.g., Lamb’s Chapel, 508 U.S. at 400
(Scalia, J., concurring in the judgment) (“What a
strange notion, that a Constitution which itself gives
‘religion in general’ preferential treatment (I refer to
the Free Exercise Clause) forbids endorsement of

’ Van Orden v. Perry, 545 U.S. 677, 688 (2005) (upholding the
display of a Ten Commandments monument on the grounds of the
Texas State Capital and acknowledging the history of such
displays)

* See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1817 (2010) (“It i
reasonable to interpret the congressional designation [of the cros
as a national war memorial] as giving recognition to the historical
meaning that the cross had attained.”)

~ Marsh v. Chambers, 463 U.S. 783, 786 (1983) (upholding the
constitutionality of legislative prayer and stating, “The opening of
sessions of legislative and other deliberative public bodies with
prayer is deeply embedded in the history and tradition of this
country”)

”’ See generally Elk Grove Unified Sch. Dist. v. Newdow, 542 U.£
1, 26, 35-36 (2004) (Rehnquist, C.J., concurring) (O’Connor, J
concurring) (acknowledging patriotic invocations of God and
official acknowledgment of religion’s role in our Nation’s history

ld

religion in general.”); McCreary Cnty., 545 U.S. at 88%
(Scalia, J., dissenting) (“Those who wrote the
Constitution believed that morality was essential to
the well-being of society and that encouragement of
religion was the best way to foster morality.”); Wallace
v. dJaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J.,
dissenting) (“It is impossible to build sound
constitutional doctrine upon a mistaken understanding
of constitutional history, but unfortunately the
Establishment Clause has been expressly freighted
with Jefferson’s misleading metaphor for nearly 40
years.”); Marsh, 463 U.S. at 790 (“[H]istorical evidence
sheds light . . . on what the draftsmen intended the
Establishment Clause to mean.”); see also Green v
Haskell Cnty. Bd. of Comm’rs, 574 F.3d 1235 (10th Cir
2009) (Kelly, J., dissenting from denial of rehearing en
banc) (“The court’s decision in this case perpetuates a
regrettable misapprehension of the Establishment
Clause: that recognition of the role of religion in this
country’s founding, history, traditions, and laws is to
be strictly excluded from the civic sphere.”). And it
offers a well-established analytical framework within
which to evaluate Establishment Clause claims. This
framework would provide needed guidance for the
lower courts and would stem the tide of “silly” cases
and opinions.

A. THE COURT SHOULD ADOPT A
RATIONAL BASIS STANDARD OF
REVIEW FOR GOVERNMENT
“RELIGIOUS” SPEECH THAT IS
REASONABLY RELATED TO OUR
NATION’S HISTORY AND TRADITIONS.

“We are a religious people whose institutions
presuppose a Supreme Being.” Zorach v. Clauson, 343

en an unbroken history of official acknowledgm:
y all three branches of government of religion’s rol

American life.” Van Orden, 545 U.S. at 678 (quoti:

ynch, 465 U.S. at 674). Examples of this histor
icknowledgment include Executive Orders recogn
eligiously grounded National Holiday uch

hristmas and Thanksgiving, Congress directing

‘resident to proclaim a National Day of Prayer e:

ear, the printing on our currency of the natuio1
otto, “In God We Trust,” the display of the cre
ITing Christmas, see Lynch, 465 U itolo ,
1d representation of the ‘Ten Commandment
overnment property, Van Orden, 545 U:. al
UmMonyP ¢ yf he LS, SCE Gd iso h La rsh, 463 | {3.3 | uy yh }
pislative prayer); see alsoMcGowa Maryla
191} (196 holding §
istorical example without nnd tha
~storv pervaded by « rpresston oO] religu
liefs Equally pervasive is the evidence

iccommodation of all faiths and all form
religious expression, and Aostility toward n
Through this accommodation Just

louglas observed. government:
followed] the Desi
respected] the religi

i
‘ | {
a t i | ‘ 4 tail

{in our Nation’s heritage has also been reflected 1
ur decisions. We have acknowledged, for example
hat religion has been closely identified with o
history and government, and that the history of ma

inseparable from the history of religion.” Va
Irden, 545 U.S. at 687 (internal quotations, bracke
ind citations omitted); see also Elk Grove Unified Sci
Dist., 542 U.S. at 26 (Rehnquist, C.J., concurring 1
judgment) (“Examples of patriotic invocations of Gi
ind official acknowledgments of religion’s role in o
Nation’s history abound.”): td. at 35-36 (O’Connor,
oncurring in the judgment) (“It is unsurprising th:
i Nation founded by religious refugees and dedicat
» religious freedom should find references to divinity
nits symbol: , songs, mottoes and oaths.”): Lynch, 46
U.S. at 675 (Qur history is replete with officia

references to the value and invocation of Divine
ruidance a Van Orden 49 U.S ii ‘ele
‘[AJcknowledgments of the role played by the T'
yommandments in our Nation’s heritage are commo
throughout America.”). Governmental suppression ¢
this tradition 1s the antithesis of the value of religio
tolerance that underlies the Establishment Clau
e.g., Lamoé’s Chapel, 508 U.S. at 400 ¢
rin the judgn

; '
.Yy |

re a religious people with a long and rich religio

eritage, policy decisions that disfavor religion, suc

the resolution at

issue here, do not enjoy
avorable history and should, therefore, be
lifferently under the law. See Lynch, 465 US. at 67
tating that the Constitution “forbids hostility towa

ny religion) (internal punctuation, quotatior

ati, mitted OT nna Valal

a

). O32 (199 Lat hat
olfies DUrpO (il iT>I

Onal | tanda

piou peech Lnat t) \

lated te ur Nation histor ind traditi
ndard woul resp r Nation [
consistent with Line iramewe
endment i; | Vi ri] | provid a VW ¢

| fOr the | Wer court 1) apply Mores

move tron

tablishment Clause claim Olt

tification for the mrovernment hostilit

hgion. See Borden v. Sch. Dist. of ly. Brur
Md 153, 174 (3d Cir. 2008) (The Suprem
ted that comphance with the Kstablishme
1 state interest sufficiently compelling
itent-based restrictions on peech

otations and citation omitted): Stratec/i

87 F 3d 597. 604-06 (3d Cir. 2ZO09) Cu

in on the performance of traditional
cin public schools and finding that tl
gitimate secular purpose of avoidiu

tablishment Clause violation”): Robert

1 F.2d 1047, 1054 (10th Cir. 1990) (hol

1001 district s order directing a t he
Bible in sight read silently fi
} I

issroon l lar pury
tended u tL 1

POO! Ler /
tablishy

Tan ‘ } }

county seal had a valid secular purpose of avoiding a
potential Establishment Clause violation); but see
Widmar v. Vincent, 454 U.S. 263, 270-71 (1981)
(holding that the state’s interest in complying with the
Establishment Clause did not justify discrimination
against a religious group)

On the other hand, government “religious” speech
that does not share the same history and tradition,
such as the anti-Catholic resolution presently before
this Court, should be treated under a higher standard

of review.

B. THE COURT SHOULD ADOPT A STRICT
SCRUTINY STANDARD OF REVIEW FOR
GOVERNMENT “RELIGIOUS” SPEECH
THAT IS NOT REASONABLY RELATED
TO OUR NATION’S HISTORY AND
TRADITIONS.

Government “religious” speech that is no
reasonably or rationally related to our Nation’s history
and tradition of recognizing and accommodating
religion should be subject to a heightened level of
scrutiny

For example, because the Constitution forbids
hostility toward a particular religion or of religion in
general—hostility that has no place in our Nation’s
history and traditions—such practices should be
judged under the Establishment Clause by applying a
strict scrutiny standard of review. See Lynch, 465 U.S.
at 673 (stating that the Constitution “affirmatively
mandates accommodation, not merely tolerance, of all
religions, and forbids hostility toward any”); see also
id. (observing that “such hostility «ould bring us into

18

war with our national traditions embodied in the First
Amendment|}”); Van Orden, 545 U.S. at 704 (Breyer,
J., concurring) (noting that “hostility toward religion
.. . has no place in our Establishment Clause
traditions”); cf. Church ofthe Lukumt Babalu Aye, Inc.,
508 U.S. at 520 (applying strict scrutiny to strike down
a law under the Free Exercise Clause that targeted a
particular religion). Thus, government speech that
explicitly disfavors religion, such as the resolution at
issue here, should be held “invalid unless it is justified
by a compelling interest and is narrowly tailored to
advance that interest.” Jd. at 533. Here, there is no
compelling interest—or indeed even a_ rational
basis—to justify the “insolent, stupid, or worse,” see
App. 37a, resolution expressly condemning Petitioners’
religion.

Similarly, strict scrutiny should apply to
government “religious” speech that favors religion in a
way that is inconsistent with our Nation’s history and
traditions. For example, a heightened level of scrutiny
should apply to a government resolution that officially
affirmed the Catholic doctrine of transubstantiation,
see, e.g., Larson v. Valente, 456 U.S. 228, 244 (1982)
(“The clearest command of the Establishment Clause
is that one religious denomination cannot be officially
preferred over another.”), or established the official
definition of “kosher” for the Jewish faith, see, e.g.,
Commack Self-Service Kosher Meats, Inc. v. Weiss, 294
F.3d 415, 425 (2d Cir. 2002) (holding that the
government violated the Establishment Clause
because it suggested a “preference for the views of one
branch of Judaism”). Taking an official position on a
specific theological proposition is qualitatively
different from government speech that is reasonably or
rationally related to our Nation’s history and tradition

of recognizing and accommodating society’s belief in
God.

It. THE EN BANC DECISION CONFLICTS WITH
DECISIONS FROM THIS COURT AND
OTHER CIRCUIT COURTS, AND IT
PRESENTS AN ISSUE OF NATIONAL
IMPORTANCE.

Should the Court decide not to substantially revise
its unworkable Establishment Clause jurisprudence,
Petitioners contend that the Court should summarily
reverse the en banc decision because it conflicts with
the controlling principles of law set forth in Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520 (1993), Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290 (2000), Edwards v. Aguillard, 482 U.S. 578
(1987), and Epperson v. Arkansas, 393 U.S. 97 (1968),

among others, and it presents an issue of considerable
national importance.

A. THE ESTABLISHMENT CLAUSE SHOULD
NOT TOLERATE GOVERNMENT SPEECH
THAT EXPRESSLY DISFAVORS
RELIGION.

This Court has previously stated that when
evaluating claims under the Establishment Clause
“the Constitution also requires that we keep in mind
the myriad, subtle ways in which Establishment
Clause values can be eroded and that we guard against
other different, yet equally important, constitutional
injuries.” Santa Fe Indep. Sch. Dist., 530 U.S. at 314
(internal quotations and citation omitted). One such
way in which these “values” are eroded is by the
passage of a government resolution that singles out a

ZU

specific religion for disfavored treatment. An
evenhanded application of prior precedent should
compel a reversal in this case. Unfortunately, with
little exception, the application of this Court’s modern
Establishment Clause jurisprudence has led the law to
disfavor religion, thereby encouraging callous acts of
religious discrimination such as the challenged
resolution at issue here. Indeed, the en banc decision,
if left unchecked, will further embolden_ those
government officials who are anti-religious (or, worse,
anti-Cathohc). And it will add further confusion to the
Court’s already confused Establishment Clause
jurisprudence

In Lynch v. Donnelly, 465 U.S. 668 (1984),
Court stated:

It has never been thought either possible or
desirable to enforce a regime of total separation.
Nor does the Constitution require complete
separation of church and state; it affirmatively
mandates accommodation, not merely tolerance,
of all religions, and forbids hostility toward any.
Anything less would require the callous
indifference we have said was never intended by
the Establishment Clause. Indeed, we have
observed, such hostility would bring us into war
with our national tradition as embodied in the
First Amendment’s guaranty of the free exercis:
of religion.

Id. at 673 (internal punctuation, quotation:
citations omitted) (emphasis added)

In Church of the Lukumi Babalu Aye, Inc. v
Hialeah, 508 U.S. 520, 532 (1993), the

acknowledged the following: “In our Establishment
Clause cases we have often stated the principle that
the First Amendment forbids an official purpose to
disapprove of a particular religion or of religion in
general.” (emphasis added).

Despite an occasional appearance of neutrality and
suggestion that the Constitution is not hostile toward
religion, the reality is that this Court’s Establishment
Clause jurisprudence is frequently used as a blunt
instrument against all thing religious in public life.

While some on this Court still believe that our
Constitution “affirmatively mandates accommodation,
not merely tolerance, of all religions, and forbids
hostility toward any,” Lynch, 465 U.S. at 673, this case
will afford the Court the opportunity to breathe new
and lasting life into this fundamenta! principle of

constitutional law that is largely ignored by the lower
federal courts. As this case shows, the Court’s
prophetic observation in Lynch that “[a]nything less
would require the callous indifference [that] was never
intended by the Establishment Clause,” thereby
bringing “us into war with our national tradition” has
come to fruition. It is time to reverse this harmful and
divisive trend.

B. THE EN BANC DECISION DIRECTLY AND
SHARPLY CONFLICTS WITH
ESTABLISHED PRECEDENT AND
PROMOTES A PERCEPTION THAT THE
LAW IS HOSTILE TOWARD RELIGION.

Throughout its decisions, this Court has
consistently described the Establishment Clause as
forbidding not only state action motivated by a desire

to promote or “advance” religion, see, e.g., Cnty. of
Allegheny, 492 U.S. at 592, but also actions that tend
to “disapprove of,” “inhibit,” or evince “hostility”
toward religion, see Edwards, 482 U.S. at 585
(“disapprove”); Lynch, 465 U.S. at 673 (“hostility”);
Comm. for Pub. Educ. & Religious Liberty v. Nyquist,
413 US. 756, 788 (1973) (“inhibilt]”). The Court has
also noted that our Constitution prohibits government
action that “foster[s] a pervasive bias or hostility to
religion, which could undermine the very neutrality
the Establishment Clause requires.” Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 846
(1995); see Lynch, 465 U.S. at 668, 673 (stating that
the Constitution “forbids hostility toward any”
religion); see also Church of the Lukumi Babalu Aye,
Inc., 508 U.S. at 532 (stating that the Establishment
Clause “forbids an official purpose to disapprove of a
particular religion or of religion in general”).

A state-sponsored message of disapproval of
religion, as evidenced by Respondents’ anti-Catholic
resolution, sends a message to Petitioners and other
Catholics that their religion is disfavored in the
community. See Cnty. of Allegheny, 492 U.S. at 597.
The First Amendment mandates neutrality toward
religion and forbids hostility aimed at a particular
faith. Cf. Church of the Lukumi Babalu Aye, Inc., 508
U.S. at 520 (striking down a law that targeted a
particular religious practice).

More recently, in Van Orden v. Perry, 545 U.S. 677
(2005), a case in which a plurality of justices upheld
the 40-year display of the Ten Commandments on the
grounds of the Texas State Capitol, Justice Breyer, in
his concurring opinion, stated,

[The removal of the religious symbol], based
primarily upon the religious nature of the
tablets’ text would, I fear, lead the law to exhibit
a hostility toward religion that has no place in
our Establishment Clause traditions. Such a
holding might well encourage disputes
concerning the removal of longstanding
depictions of the Ten Commandments from
public buildings across the Nation. And it could
thereby create the very kind of religiously based
divisiveness that the Establishment Clause seeks
to avoid.

Id. at 704 (emphasis added)

While the language from these cases appears to
support a “disapproval of religion” claim, the practical
reality is that such claims are given little traction by
the lower courts, as this and other cases demonstrate.
See Stratechuk v. Bd. of Educ., 587 F.3d 597 (3d Cir.
2009) (upholding against an Establishment Clause
challenge a school district’s ban on the performance of
traditional Christmas music in its public schools
because the music is associated with a religious
holiday); Am. Family Ass’n v. City & Cnty. of San
Francisco, 277 F.3d 1114, 1124 (9th Cir. 2002) (holding
that San Francisco’s resolution condemning a religious
organization’s advertisement opposing homosexuality
did not violate the Establishment Clause); Vasquez v.
Los Angeles Cnty., 487 F.3d 1246 (9th Cir. 2007)
(upholding against an Establishment Clause challenge
the government’s removal of a small, historic cross
from the county seal because the cross was a religious
symbol); Vernon v. City of Los Angeles, 27 F.3d 1385,
1396 (9th Cir. 1994) (stating that “[t]he government
neutrality required under the Establishment Clause is

. violated as much by government disapproval of
religion as it is by government approval of religion,”
but finding no violation); O’Connor v. Washburn Unuv.,
416 F.3d 1216 (10th Cir. 2005) (upholding a
government display of an anti-Catholic statue against
an Establishment Clause challenge); cf Nurre ov.
Whitehead, 580 F.3d 1087 (9th Cir. 2009) (upholding
the ban of a student performance of “Ave Maria” at a
public school graduation). Compare Murray v. City of
Austin, 947 F.2d 147, 158 (5th Cir. 1991)
(acknowledging that removing Christian symbols, such
as a cross, from all public displays “evinces not
neutrality, but instead hostility, to religion” and
holding that the inclusion of a Christian cross in the
city insignia did not violate the Establishment Clause);
Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 407-
08 (5th Cir. 1995) (“Limiting the number of times a
religious piece of music can be sung is tantamount to
censorship and does not send students a message of
neutrality. ... Such animosity towards religion is not
required or condoned by the Constitution.”) (emphasis
added); see also ACLU v. Mercer Cnty., 432 F.3d 624,
638-39 (6th Cir. 2005) (upholding the public display of
the Ten Commandments and observing that the
“repeated reference to ‘the separation of church and
state” is an “extra-constitutional construct [that] has
grown tiresome”). At a minimum, there is much
confusion in the lower federal courts that only this
Court can clarify. Green, 574 F.3d at 1245 (Gorsuch,
J., dissenting from denial of rehearing en banc)
(“[U|ntil our superiors speak, we leave the state of the
law in Establishment Clause purgatory.”) (internal
quotations and citation omitted).

In the Ninth Circuit, and elsewhere, even the most
subtle and inconsequential act favorable to religion is

20

quickly held impermissible, see, e.g., Trunk, 2011 U.S.
App. LEXIS 53 (declaring the use of a cross in a
longstanding war memorial unconstitutional); Borden
v. Sch. Dist. of E. Brunswick, 523 F.3d 153 (3d Cir.
2008) (prohibiting a football coach’s participation in
student-led prayer by silently bowing his head during
grace and taking a knee during locker room prayer);
Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d
Cir. 2009) (refusing to allow a parent to read Bible
verses to her son’s kindergarten class during the
student’s “All About Me” week); see also Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (allowing
an option for student-initiated and student-led prayer
at high school football games violated’ the
Establishment Clause), making hostility to religion the
standard to comport with the Establishment Clause.
This view of the Court’s jurisprudence inevitably leads
to a view of the law that is disapproving of religion.

Indeed, an official resolution that explicitly
condemns Catholics and their religion is not neutral
toward religion, but rather hostile to it. And even
subtle departures from neutrality are allegedly
prohibited by the Establishment Clause. See Church
ofthe Lukumi Babalu Aye, Inc., 508 U.S. at 534; Santa
Fe Indep. Sch. Dist., 530 U.S. at 314 (admonishing the
courts to “keep in mind the myriad, subtle ways in
which Establishment Clause values can be eroded” and
to “guard against other different, yet equally
important, constitutional injuries”); see also Sch. Dist.
of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963)
(concurring opinion) (noting that an “untutored
devotion to the concept of neutrality” can lead to
“hostility to the religious”). But these principles are
often cast aside in favor of an approach that employs
curettage and disinfectant for all that partakes of the

26
religious in public life—an approach wrought by thi:
Court’s muddled jurisprudence.

In the present case, the resolution violates the
Establishment Clause on its face because it expressly
and in explicit terms condemns Catholics and their
religion. See Santa Fe Indep. Sch. Dist., 530 U.S. at
314 (holding that “the mere passage by the District of
a policy” that has the “purpose and perception” of
favoring religion violates the Constitution) (emphasis
added). An examination of the _ resolution
demonstrates that the City’s departure from neutrality
was anything but “subtle”; it created the very kind of
political divisiveness along religious lines that the
Establishment Clause was apparently designed to
avoid.

Unfortunately, the Ninth Circuit’s en banc decision
represents an entrenched and improper double
standard for Establishment Clause cases that requires
only a minimal standard of proof for finding a
constitutional violation in “approval” cases and a very
high standard of proof for finding a constitutional
violation in “disapproval” cases. This case presents a
perfect opportunity to eliminate this double standard
in the lower federal courts by applying the
Establishment Clause in an evenhanded manner, as
required by this Court’s precedent.

In the final analysis, the en banc court’s decision
contravenes this Court’s case law _ prohibiting
government disapproval of religion and should be
summarily reversed. However, the lack of clarity from
this Court, particularly with regard to “disapproval”
claims, is undoubtedly a major contributing factor for
the fractured opinion below. Therefore, the Court

vident that Ctl

ts wit h several decisions from thi

L1CUS

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Plece

ther circuit courts so that consideration is

» secure and maintain uniformity of decisions 01
nportant issue of federal law, the crux of the pro}
that this Courts Establishment Cla
urisprudence is 1n need of substantial revision
ourt should prant review of this case and tak
pportunity to abandon the present Establishm«s
1use framework, which tends to be hostile tov
gion, in favor of a workable standard that

7

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capable of consistent application
nsistent with our Nation’s religi

OBERT JOSEPH
Counsel of Recor
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1 Frank Lloyd W:
P.O. Box 393
Ann Arbor, Mi
134) 827-200]

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Parts | and II of this opinion are joined by J1

THOMAS, SILVERMAN, CLIFTON, BYBEE,
[KUTA. Part IIT of this opinion, addressing the merit
if the plaintiffs’ claim, is a dissent, joined by Judg:
BYBEE and IKUTA. Five of us, including Chief Judg
KOZINSKI and Judges RYMER, HAWKINS, a:
McKEOWN, conclude that the plaintiffs have
standing, as set forth in Judge GRABER’s opini
Three of us, including Judges ,THOMAS an
CLIFTON, concur in the judgment, concluding tha
although the plaintiffs do have standing, their cla
fails on the _ merit:

| | VE R M A N

i. Facts’

We address whether Catholics and a Catholi
advocacy group in San Francisco may sue the City on
account of an official resolution denouncing their
church and doctrines of their religion. They may.

Pope Paul II] established the Congregation for the
Doctrine of the Faith a half millennium ago.’ It
safeguards and promotes Catholic doctrine on faith
and morals. In 2003, the Congregation addressed
homosexual marriage and adoption, concluding that
both were immoral, and that it was the moral duty of
Catholics to oppose both. To carry out this doctrinal
decision, Cardinal William Joseph Levada directed the
Archdiocese of San Francisco that Catholic agencies
should not place children for adoption in homosexual!
households

San Francisco immediately responded with official
hostility. The San Francisco Board of Supervisors
adopted the resolution giving rise to this lawsuit. The
resolution urges the Cardinal to withdraw his
instructions; denounces the Cardinal’s directive as
“meddl[ing]” by a “foreign country”; calls it “hateful,”
“insulting,” and “callous”; and urges the _ local
archbishop and Catholic Charities to “defy” the

' Because the complaint was dismissed under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim on which relief
could be granted, we take the factual allegations from the
complaint to determine whether, if proved, they would establish
a claim. Sacks uv. Office of Foreign Assets Control, 466 F.3d 764,
771 (9th Cir. 2006). We therefore state the facts as pleaded

1542, 468 years ag

Cardinal!

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 adoption with homosexual
households.

WHEREAS, It is an insult to all Sa

Franciscans when a foreign country, like
the Vatican, meddles with and attempt:
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

need: and

WHEREAS, The statements of Cardina

Levada and the Vatican that “Catholi
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” are absolutely unacceptable t

the citizenry of San Francisco; and

WHEREAS, Such hateful al
discriminatory rhetoric is both insulting
and callous, and shows a level of
insensitivity and ignorance which h

ecidedly
is former he

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re Cl lve Ne

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ongregation for the Doctrine of tl
at the Vatican (formerly knov
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placing children in

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Plaintiffs sued the City, claiming that this official
government resolution violates the Establishment
Clause. The district court dismissed their lawsuit for
failure to state a claim upon which relief could be
eranted, and we initially affirmed.* We then voted to
rehear the case en banc, and now affirm the district
court’s dismissal on differing grounds

Standing

lhe complaint alleges that plaintiffs are a Catholi
civil rights organization and two devout Catholics who
live in San Francisco. They aver that the resolution
conveys a government message of disapproval and
hostility toward their religious beliefs. It “sends a clear
message,” they plead, “that they are outsiders, not full
members of the political community.” They allege that
they have been injured by “misuse of the instruments
of government to criticize, demean and attack their
religion and religious beliefs, thereby chilling their
access to the government.” The individual! plaintiffs
aver that they “will curtail their activities to lessen
their contact” with the city and county government
and the two members of the Board of Supervisors sued
because of the resolution

After raising the question of standing sua sponte
we asked the parties for letter briefs addressing it. The
City and County conceded standing, arguing that “the
individual plaintiffs have successfully pleaded
standing, having alleged that they are members of thi

‘Catholic League for Religious and Civil Rights v.
567 F.3d 595 (9th Cir. 2009), reh’g en bane
(9th Cir. 2009)

mmmunity who have had contact with the resolutio:
and have suffered spiritual harm as a result.” Wer
the result otherwise, the municipality concedes,

resolution declaring Catholicism to be the official

religion of the municipality would be effectively,

unchallengeable. The municipality also concedes th
the Catholic League has “associational standing.”

At bottom, ‘the gist of the question of standing

whether petitioners have ‘such a personal stake in tl
utcome of the controversy as to assure that concrete
si seness which sharpens the presentation of issues
upon erent the court so largely depends for
Ulumination.’” Had a Protestant in Pasadena brought
this suit, he would not have had standing. Catholics in
San Francisco, on the other hand, have sufficient
interest, so that well-established standing doctrins
entitles them to litigate whether an anti-Catholi
resolution violates the Establishment Clause
Standing, or the lack of it, may be intertwined witl
whether the complaint states a claim upon which relief
can be granted, but it is not the same thing.® Standing
is not about who wins the lawsuit; it is about who is
allowed to have their case heard in court. It would be
outrageous if the government of San Francisco could
condemn the religion of its Catholic citizens, yet those

citizens could not defend themselves in court against

the ir covernment s prefern nent of othe r religious view

Nevertheless, some of us have dissented on
standing, so we address the issue. The standing
question, in plain English, is whether adherents to a
religion have standing to challenge an official
condemnation by their government of their religious
views, and official urging by their government that
their local religious representative defy their church.
Their “personal stake” assures the “concrete
adverseness’ required. “Endorsement sends a message
to nonadherents that they are outsiders, not full
members of the political community, and an
accompanying message to adherents that they are
insiders, favored members of the political community.
Disapproval sends the opposite message.”’ Plaintiffs
aver that not only does the resolution make them feel
like second-class citizens, but that their participation
in the political community will be chilled by the City’s
hostility to their church and their religion.

[1] The constitutional requirement of standing has
three elements: (1) the plaintiff must have suffered an
injury-in-fact — that is, a concrete and particularized
invasion of a legally protected interest that is actual or
imminent, not conjectural or hypothetical; (2) the
injury must be causally connected — that is, fairly
traceable — to the challenged action of the defendant
and not the result of the independent action of a third
party not before the court; and (3) it must be likely and

|

not merely speculative that the injury will bs

Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, .
concurring); see also Cnty. of Allegheny v. ACLU, 492 U.S. 5
595 (1989) (adopting Justice O’Connor’s rationale in Lynch

redressed by a favorable decision by the court.° “The
concept of a ‘concrete’ injury is particularly elusive in
the Establishment Clause context . . . because the
Establishment Clause is primarily aimed at protecting
non-economic interests of a spiritual, as opposed to a
physical or pecuniary, nature.”

[t is, of course, incumbent upon the courts to apply
standing doctrine neutrally, so that it does not become
a vehicle for allowing claims by favored litigants and
disallowing disfavored claimants from even getting
their claims considered. Without neutrality, the courts
themselves can become accessories to unconstitutional
endorsement or disparagement. Standing is
emphatically not a doctrine for shutting the
courthouse door to those whose causes we do not like.
Nor can standing analysis, which prevents a claim
from being adjudicated for lack of jurisdiction, be used
to disguise merits analysis, which determines whether
a claim is one for which relief can be granted
factually true.

[2] Standing was adequate for jurisdiction
Kstablishment Clause cases in the Supreme Court i1

the following contexts: prayer at a football game,”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 :
Valley Forge Christian Coll. v. Ams. United for Separation
Church and State, Inc., 454 U.S. 464, 475-76 (1982)

reche in a county courthouse Or PuUDLIC parK,
Ten C mmandments displayed on the grounds
state capitol’® - ata courthouse, ‘a cross display at
national park,” school prayer,’® a moment of silence a
school,’’ Bible reading at public school,’® and
religious invocation at a graduation.” No one w:
made to pray, or to pray in someone else’s church, or t
support someone else’s church, or limited in how they
prayed on their own, or made to worship, or prohibited
from worshiping, in any of these cases. The Court
treated standing (and therefore the concretenes

element of standing) as sufficient in all of these cas
even though nothing was affected but the religi
irreligious sentiments of the plaintiffs

idge Graber S argument appears to De tnat
ot involve a challenge to a religious display on governmer
property, a religious exercise at a public ceremony, or a “specifi
governmental policy or statutory provision,” there is no standinj

ire is not a single standing case that limits Establishme

[3] We have concluded that standin;

iblished in cases involving displaying cro

lause standing to these three categories. Most of the case

into them because American governments have typically bee:
sympathetic to religion rather than hostile to it. Establishment
Clause challenges, because of this typical governmental sympathy
for religion, tend to challenge governmental endorsement. The
Supreme Court, though, has carefully linked rejection of
endorsements to rejection of condemnations in virtually every
discussion of the subject. See, e.g., Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1992) (“[T)he First
Amendment forbids an official purpose to disapprove of
particular religion .. . .”). Moreover, an official resolution of the
City of San Francisco is indeed a “case[ } involving a specifi«
governmental policy,” condemning, in this case, the Catholi
Church. The distinction Judge Graber draws between
governmental display and a government’s official resolution cut
against her view. A symbol such as a créche on the city hall lawr
is ambiguous. It may mean that the government endorse:
Christianity, or it may mean that the government merely wishe:
to show respect and friendship for Christianity. The resolution at
issue, like a symbol, conveys a message, but unlike a symbol, thi
message is unambiguous. Judge Graber’s opinion would ignors
San Francisco’s plain denunciation of the Catholic Church becauss«
it is unaccompanied by symbolic public art. The opinion alss
ignores binding Supreme Court precedent on government speech
“The Free Speech Clause restncts government regulation ot
private speech; it does not regulate government speech Thi
does not mean that there are no restraints on government speech
For example, government speech must comport with the
Estabhshment Clause.” Pleasant Grove City v. Summum, 129 §

t. 1125, 1131-32 (2009)

u InP All ¢

ed not be patiently explicated is that
raber’s cited cases involves a government

articular church or religion. The attempt to tease ou

hetoric explaining the holdings in other, quite different, fact

ircumstances fails because the language in every case explai
different result. True

there are so many Establishment Cla
unding cases that the language (as opposed to the holding
yme furnishes ammunition for Judge Graber
eFevre upholds standing to challenge federal statutes requir
n God We Trust” on currency, but not the federal statute mak
n God We Trust’ the

s view. Newd

national motto. 598 F.3d 638, 642 (9th ‘¢

Vi Candin:

es retain thei VI

} i
1i0n would be

>i

ject standing for

i
Oth Cir

regarding traditie
itriotic formulas that in reneral religiosity
cal ordinance condemning the church and religious viev

yme of the municipality

dent takes the explanat

inguage of these cases too far. Additionally, Judge Graber a
at a one-page Eighth Circuit per curiam opinion, Flora v. Vi
692 F.2d 53 (8th Cir. 198

‘Indistinguishable’” from this ca

Hardly. The BKighth Circuit held
rovision in the Arkar

e of holding public offic

had n@ pi

}
‘

er curiam) that the plaintif
cked standing to challenge
nstitution making atheists incay
where the plaintiff

cing offended because they were :

testify as a witness, in
ther. /d. at 54. Their |
is analopized to the plaintiffs offended but not affected in Va:
United for Separati

tthe

rye Christian College v. American
hur h and State , 454 { 164 (1982) See Flor
ilike either of these « the plaintiff here

1)

consequence” does not suffice as concrete harm wher:
it is produced merely by “observation of conduct with
which one disagrees.” But it does constitute concrete
harm where the “psychological consequence” is
produced by government condemnation of one’s own
religion or endorsement of another’s in one’s own
community. For example, in the school prayer and
football game cases, nothing bad happened to the
students except a psychological feeling of being
excluded. Likewise in the creche and Ten
Commandments cases, nothing happened to the non
Christians, or to people who disagreed with the Ten
Commandments or their religious basis, except
psychological consequences. What distinguishes the
cases is that in Valley Forge, the psychological
consequence was merely disagreement with the
government, but in the others, for which the Court
identified a_ sufficiently concrete injury, the
psychological consequence was exclusion 01
denigration on a religious basis within the political
community.””

' Judge Graber argues that standing is appropriate in t
religious display cases, but not this case of condemnation of a
religion, because those who challenge a religious display have
frequent or regular contact with it and are harmed because they
cannot freely use public areas. This distinction cuts the other way,
however, as explained above. Living 1u a city that condemns one’s
religion is a daily experience of contact with a government that
officially condemns one’s religion. A plaintiffs having visual
contact with a cross is immaterial, and would not raise a question
if it were merely in a painting in the city art museum, because a
reasonable person would not infer a government’s position on a
religion from the painting. The “contact” that matters is in the
mind — acquisition of the knowledge that the government
endorses (or condemns) a religion. An official government
condemnation of a religion unambiguously and inescapably

[5] Plaintiffs allege that they are directly
stigmatized by San Francisco’s actions. They allege
that the stigmatizing resolution leaves them feeling
like second-class citizens of the San Francisco politica
community, and expresses to the citizenry of San
Francisco that they are. The cause of the plaintiffs’
injury here is not speculative: it is the resolution itself
Plaintiffs allege that their “Sacred Scripture” “presents
homosexual acts as acts of grave depravity,” and that
“Catholic tradition has always declared _ that
homosexual acts are intrinsically § disordered.’
Plaintiffs believe as part of their religion that

4

“Catholics have an obligation to state clearly tl

conveys knowledge of that condemnation. Judge Graber’s notio1
that the public display cases involve restriction on movement
relies on a false factual proposition. In none of the religious
display cases is there any law prohibiting free use of public areas
by those who are not adherents to the religion. The nonadherents
simply feel uncomfortable in the presence of a display endorsing
someone else’s religion. There is no principled basis for
assiduously addressing that discomfort, yet treating as trivial the
discomfort of those whose religion is condemned by their
government. The plaintiffs are as affected by what the San
Francisco government has done — condemning their religion — a:
an atheist would be if the San Francisco government erected a
giant cross on top of its biggest hill, on which he happened to hive
and which he would be walking past on the way to work. Thx
government cannot constitutionally endorse a religion by erecting
the cross; nor, analogously, can it condemn religion by erecting a
gigantic sign on city hall of a cross with a line through it: a “no
Christianity” sign with the design of a “no smoking” sign. The
Board’s resolution accomplishes the same thing as _ the
aforementioned sign, but even more plainly and unambiguously
Symbols endorsed or adopted by a government are often
ambiguous, but the words in this resolution are not
Consequently, this is an easier and more direct case for standing

than any of the religious-symbolism cases cited by Judge Graber

LSa

immoral nature of homosexual unions so as to
safeguard public morality, and above all, to avoid
exposing young people to erroneous ideas about
sexuality and marriage. Clear and emphatic opposition
to homosexual unions is a duty of all Catholics.” San
Francisco directly disparages these religious beliefs
through its resolution by calling them “hateful and
discriminatory,” “insulting and callous,” and
“insensitivle] and ignoran|[t].”

[6] The concreteness of injury is_ sufficiently
pleaded here because plaintiffs aver that: (1) they live
in San Francisco; (2) they are Catholics; (3) they have
come in contact with the resolution; (4) the resolution
conveys a government message of disapproval and
hostility toward their religious beliefs; that (5) “sends
a clear message” “that they are outsiders, not full
members of the political community”; (6) “thereby
chilling their access to the government’; and (7) forcing
them to curtail their political activities to lessen their
contact with defendants.

[7] Standing also requires redressability, that is,
that it is “likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.”**
Plaintiffs seek a declaratory judgment that the
resolution is unconstitutional, and nominal damages
for the violation of their rights. By declaring the
resolution unconstitutional, the official act of the
government becomes null and void.” Even more

‘Lujan v. Defenders of Wildlife
quotation marks oraitted)

See, e.g., Powell v. McCormack, 395 U.S. 486, 506 (1969)

“Especially is it competent and proper for this court to consider

important, a declaratory judgment would comn

to the people of the plaintiffs’ community that tl
government is_ constitutionally prohibited fr
condemning the plaintiffs’ religion, and that any
condemnation is itself to be condemned. Th

reaffirm the fundamental principle t}

itihe basic purpose of the religion clause
First Amendment is to promote and assure th

fullest possible scope of religious libert

y
tolerance for all and to nurture the conditio1

+} +}

} , . os 4
which secure the best hope of attainment of

’

fullest realizati
berty requires that government
nor compel religious practices, that
o favoritism among sects or between
nd nonreligion, and tha

is.

vhether its (the legislature’s) procee:

the Constitution and laws, because, living under a writt
constitution, no branch or department of the government
supreme; and it is the province and duty of the judic:
department to determine tn cases regularly brought before then
whether the powers of any branch of the government, and eve
those of the legislature in the enactment of laws, have bi
exercised in conformity to the Constitution; and if they have n
to treat their acts as null and void.’ ” (quoting “language wt
time has not dimmed” from Kilb ]
199 (1880))

-OnCcuUrring

} <
z

Ho 4 at hliichr, rah rte Tr Saakaat
le MStaplisnme VIODMUILS POVECTIIE

n making adherence to a religion relevant in an)
standing the political

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Lil€

persons in

community.” Government

Establishment Clause through
lisapproval of religion. Endorsement sends a messagi
a

Luis

o nonadherents that they are outsiders, not
community, and

runs afoul of
“endorsement

Way to a

(

Ale

members of the political
iccompanying message to adherents that they

insiders, favored members of the political community
”“* Plaintifi

Disapproval sends the opposite mes sage.
complain here of just h areeenaaald
isparagement * +]

101 1 another Establisl Clar

> *
19 VE '
ACA V4 aa

Ve lL LU
ise brought by people whose religion was directly
yndemned by their government. Though there have
Mormons and Jehovah’s

been lapses, as_ with
Witnesses, tradition even more than law has generall

‘estrained our national, state, and local government:
from expressing condemnation or disrespect fo
anyone's religion. George Washington set the tone fo:

ur governmental relationship to religion even befor
— 17!

<

+
, rPrEirgeo
itt

a
Kirst Amendment

ncurring); s
1989)

pression of gooawil!
Newport, Rhode Isla:
All possess alike liberty nsciel
mmunities of citizenship. It is now no m«

that toleration is spoken of, as if it was by tl

indulgence of one class of people, that anoths
enjoyed the exercise of their inherent natura
rights. For happily the government of th
United States, which bigotry 1
sanction, to persecution no assistance, require

only that they who live under its protectio1

gives to

hould demean themselves as good citizens,
riving if | occasions their effect
upport

Ion on government nostill

ne only recent Court dec!
)a particular religion that we have found is the fre

xercise decision of Church of the Lukumti Babalu Ay.

Inc. v. City of Hialeah, where the Court notes that it

Establishment Clause cases “have often stated th:

principle that the First Amendment forbids an officia
purpose to disapprove of a particular religion or

religion in general.”*” That case, along with man}

other opinions of the Court, stands for the principle

has no legitimate role under the

+b, } . | la

hat government
rent Cla ] Nlidging

r)

yf the people — either by praise or denunciation.” ']

principle requires that we nullify San Francisco
sovernmental condemnation of Catholic doctrine

Though much criticize oo Lemon v. Kurt
remains controlling on Establishment Clauss

violations. subject to subsequent emendation

wee, €.2., Lynch, 465 US. at 673 (“Nor does the Constitutio
require complete separation of church and state; it affirmative
mandates accommodation, not merely tolerance, of all re heiom

nd forbids hostility toward any.” (emphasis added

, Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grume
S.6 87, 720 (1994) (O’Connor, J., concurring) (warning that
“the bad test may drive out the good. Rather than taking the
opportunity to derive narrower, more precise tests from the case
law, courts tend to continually try to patch up the broad test,
making it more and more amorphous and distorted. This, I an
afraid, has happened with Lemon”); Lamb’s Chapel v. Ctr
Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia
J., concurring) (lamenting that “[llike some ghoul in a late-night
horror movie that repeatedly sits up in its grave and shuffles
abroad, after being repeatedly killed and buried, Lemon stalks ou
Establishment Clause jurisprudence once again, frightening the
little children and school attorneys. ...” And detailing how “fo]vez
the years... no fewer than five of the [then] sitting Justices have
in their own opinions, personally driven pencils through the
creature’s heart (the author of today’s opinion repeatedly), and :
sixth has joined an opinion doing so”); Crty. of Allegheny v. ACLI
492 U.S. 573,669 (1989) (Kennedy, concurring in part) (expressing
his view “that the endorsement test is flawed in its fundamental:
ans unworkable in practice”); Comm. for Pub. Ed. v. Regan, 444
S. 646, 671 (1980) (Stevens, J. dissenting) (explaining that th
Coat should abandon “the sisyphean task of trying to Pat
toge the r thet yurred, indistinct, and variable barrier’ described

7210n

endorsement” and “neutrality” principles hav

developed.** Under Lemon, government action must
have a secular purpose, “its principal or primary effect
must be one that neither advances nor inhibits
religion,” and it “must not foste1 KCESSIN

entanglement with religion.”

The municipality argues that its purpose was not
condemn Catholicism, but rather to foster equa
treatment of people who are gay and lesbian. That 1:
indeed a legitimate purpose, but we would not have
this case before us if that were all that the resolutio1
said. The San Francisco government would face no
colorable Establishment Clause challenge had they
limited their resolution to its fourth “whereas,” that
“[s]Jame sex couples are just as qualified to be parents
as heterosexual couples.” San Francisco is entitled to
take that position and express it even though Catholics
may disagree as a matter of religious faith. But the
title paragraph, the other five “whereas” clauses, and
the “resolved” language are all about the Cathol
Church, not same-sex couple

The municipality argues that any reasonal

recipient of its message would also be familiar with 11
forty-one other resolutions condemning discriminatio1

os ~ } |
izainst homosexuals and anti-homosexual speech

See Lamb’s Chapel, 508 U.S. at 395 n tating, in responst

Justice Scalia’s assertion that Lemon was a “ghoul in a late-night
horror movie,” that “there is a proper way to inter an established
decision and Lemon, however frightening it might bs |

1t been overruled”

7" .a4
te) | Th.

Russia, Germany,” Florida,” Alabama,” by a senat

from another state,” by various celebrities,”'and by
football team.** The municipality claims that thes
show that its concern is homosexuals, not Catholicism
and that any inference of anti-Catholicism is decisively
rebutted because anyone would know that the
councilman who introduced the resolution is Catholic
The argument seems bizarre. Why would anyone know
the personal religious faith of each city councilman? O1

be familiar with all the resolutions of their municipal!

government, not just the one attacking their church?
moti

And why should the underlying seculaz

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inferable from other government actions cure al
expressed anti-Catholic purpose in the action
challenged? Regardless of what the underlying
motivation may be for the various individuals on the
city council, a court must, in deciding whether a
government action violates the Establishment Clause,
read the words of the government enactment.” If the
zoning board prohibited all synagogues and mosques
from operating within the city limits, the action would
not be saved even by a legislative history that
persuasively demonstrated a secular motive of
avoiding strife between Jews and Muslims. “[O]fficial
objective emerges from readily discoverable fact

Judge Silverman suggests that the resolution should be read in
the context of San Francisco’s history of promoting gay rights and
supporting the rights of same-sex couples. A strong city policy of
favoring gay rights, though, does not justify official attacks on
religion. The San Francisco government used the group version of
an ad hominem argument. Instead of a resolution simply favoring
same-sex adoption and criticizing the arguments against it, the
resolution attacked the religion of those against it. A secular
motive for smearing anti-Catholic graffiti on a cathedral would
not erase the anti-Catholic message conveyed. The Board of
Supervisors went out of its way to characterize Catholicism as
coming from a “foreign country[:}] the Vatican,” its teachings as
“hateful,” and implicitly compared modern-day Catholic officials
to the Inquisition. These are traditional anti-Catholic tropes
employed for centuries by anti-Catholic bigots. See, e.g., Thomas
E. Watson, Rome’s Law, Or Our’s Which?, The Jeffersonian,
Sept. 7, 1916, at 4 (using the same rhetorical! device as the Board
of Supervisors, Tom Watson, the Populist supporter of the Ku
Klux Klan, characterized Catholic religious convictions as “laws
of [a] foreigner [that] are absolutely antagonistic to ours. . . . Ths
Pope’s is the only church that is foreign; the only church whose
laws antagonize democracy and republican institutions... ; the
only church whose theology teaches murder, and whose literatur«

;so obscene that she savagely prosecutes [those] who expose it’

ithout any judicial psychoanalysis of a drafte

fhearts.”” “[T]he absence of a malevolent motive dos

not convert a facially discriminatory policy int
.eutral policy with a discriminatory effect

[he resolution also must satisfy the second pro
the Lemon test, that its “principal or primary effect
must be one that neither advances nor inhibit:
religion... .”° Here, the argument seems to be that
the resolution has no effect at all, let alone a “principa
or primary one, because it is merely an ineffectua
expression of the Board of Supervisors’ sentiment ans
not a compulsory regulation of behavior. Tha
argument cannot stand because of the extensiv:
Establishment Clause jurisprudence
government, arguably with similar ineffectualil
endorses religion, and the mere endors«
leemed unconstitutional

d Aut )

A 4A - 4 ;

Vorke , 4 Johnson riir
ee, Cz. Mc reary Cnty , 045 (JS. at 844 (dy

Commandments); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.:
2000) (prayer before football game); Lee v. Weisman, 505 U
1992) (religious invocation at school graduation); C
Allegheny v. ACLU, 492 U.S. 573 (1989) (créche display
courthouse); Wallace v. Jaffree, 472 U.S. 38 (1985) (moment
silence or voluntary prayer at school); Sch. Dist. of Abington Tw;
Schempp, 374 U.S. 203 (1963) (Bible reading at school); Eng
Vitale, 370 U.S. 421 (1962) ( (prayer at school); Buono v. Nortor
11 F.3d 543 (9th Cir. 2004) (cross on age land); |

rut’

Separati »/

& State Comm. v. City of Eugene, 93 F.3d 61

ele)

at ‘ }
established principle that the governm: nu
neutrality towa1

pursue a course of complete
eligion.””’ The “[Establishment] Clause, at

east, prohibits government from appearing to take

the vel

fron

sition on questions of religious belief o

} ‘ . : :
community

making adherence to a religion relevant in any way
lita he

person's standing in the po

.% a rroicrref?t r<¢ n mi :
Wlause MILNL areuadDly i!

‘he Establishment
een limited, long ago, to prohibiting something |

he Church of England, where taxes support thi
appoints

ne
government ts head, t!

hurch and the

Archbishop of Canterbury. Or the clause might hav
been limited to laws imposing fines for failure |
ittend church at proper times.” But it has not been :

imited. The Establishment Clause as it has develops
eovernment action that is n

may be violated even by
nore than expression of a sentiment, as by displays
‘eligious symbols on government property. None

anyone to do anything

these violations compel
‘efrain from anything, but they : the usual subje
Eictablishmse nt *& 11} a } 1 4.2 . os
&

ie LALLA 4 ‘ 4 P|
arrand ed., 1929) (1648) (requiring church attendance «
Lords days” and any other days “as are to be generally kept
itie,” with anyone who violated this |

the appointment of Auth«

being required to “forfei

if ves

1Sapprov al.

ndorsement
t “Catholic doctrine is wro!

—
40)

the Establishment Clauss

regal

nowledge

Baare

in Indone

official re

aintliis iW ( Cause duily-electea governme
ficials have the right to speak out in their offici
capacities on matters of secular concern
‘constituents, even if their statements offend th.
religious feelings of some of their other constituent
[he key here is that the resolution in question had

rimanly secular purpose and effect and addres

af nee}

ablshment Clause’s neutrality-only requirems
when it: (1) has a predominantly religious purpose; |
as a principal or primary effect of
nhibiting religion; « 3 fosters excessi'

>

Lemon v. Kurtzman, 40

¥

ripartite Lemon test to governmental expressions
illeged religious hostility. See Am. Family Ass’n v. (

|

(

Vy

ounty of S.F., 277 F.3d 1114, 1121 (9th Cir. 2002
also Vernon v. City of L.A., 27 F.3d 1385, 1396 (9tl
1994). The resoluti itisf

regulated
io not necess
‘remonies and traditions. The same-sex marriag
bate surely has religious significance to many, but i
also a hot-button political issue of considerabl
interest to the defendants’ constituents
defendants passed their March
direct response and contemporaneo'
yardinal Levada’s March 2006 directive. The
re f¢ rs explicitly LO + ta

y

(atn

.

Its stated purpose 1st
directive

use hol ls i
Willi: im | lade to withdraw [t]his

The reasons given are purely secular, not theologica
ylutron contains nothing like, “T!

ry -_
( Das? Road bala

Forexample, ther
Church has misread the Bible,” or
f same-sex Marriage.”

| agree with the district court that under Ls
irst prong (the purpose prong), an “objective observ:
who is “presumed to be familiar with the history of tl
yovernment’s actions and competent to learn wha

T trys

-7
|

show” would conclude that

history has _ to
predominantly secul

lefendants acted with a
purpose, i.e., to promote equal rights for same-s
‘ouples in adoption and to place the greatest numb:
yf children possible with qualified families. Moreove:
San Francisco has a well-known and lengthy history
promoting gay rights. See Catholic League v. Cit
‘ounty of S.F., 464 F. Supp. 2d 938, 946 &
udicial notice of other San Francisco
rights of same-sex cou
consider the resolutio

romoting the les
le observer would
he context of both this history and
unabashed efforts to frustrate same-s«
the defendants’ polit

"

reasonab
the Cathol
‘-hurch’s
adoption in San Francisco,

ailiwick. In hght of this context, such an obser
would conclude that 7D

‘esolutior

) reasonable observer familiar with
istory of the government practice at issue here wt
ynclude that the primary effect of the resolution

\
A

promote same-sex adoption. See

YT?

imary message is that “same x couples are j
yualified to be parents as are heterosexual couple
and that placing children in homosexua! household
does not do violence to them. An objectively reasonable
ybserver would conclude, as they would in the context
of the purpose prong, that both San Francisco’s histor
f promoting gay rights and the timing of tl
lefendants’ resolution, incendiary though it may be

umed at expressing the defendants’ posit
ilar issue of same-sex adopti
a na ‘ : a

tanglement prong), this resolution does
‘xcessively entangle the defendants with religion
vas an isolated, non-binding expression of the Boar
f Supervisors opinion on a secular matter, which t
plaintiffs have not alleged even potentially interferes
with the inner workings of the Catholic Church. Th
type of one-off entreaty does not violate Lemon’s thir
prong; “laldministrative entanglement typical
nvolves comprehensive, discriminating, a

ontinuing surveillance of religion.” Vernon, 27 F 3d i
1399. To like effect is Nurre v. Whitehead, 580
1087 (9th Cir. 2009), holding that a school distric
single request that a student not play “Ave Maria”

* a . .— . = mito > |}
oraduation, because of mul ipie compiaintS a
‘eligiouS muSIk a t

tanglem
AM e€TitCcal#r. (alii 7 PiIcivuded id 1

Supervisors did not violate the Est: iblishme
lause by passing resolutions similar to hone at issi
ere. The resolutions in American Family criticized

religious political coalition for its wc position

, ¢ +, nda valk ork

)
omosexuallty assailed ne scientilic and socioi

+

television stations not to support the coalition
message of intolerance. See Am. Family, 277 F.3d at
1119-20. One of the coalition’s ads, placed in the San
Francisco Chronicle, proclaimed that “God abhors any
form of sexual sin,” including homosexuality. /d. at
1119. The Board passed the resolutions in response 1
that ad, and others. /d. at 1119-20

The plaintiffs would have us distinguish thi
resolution in this case from the one in American
Family on the grounds that the Board directed this
resolution toward a religious entity rather than a
political one. But the mere fact that a resolution calls
out a church or a clergyman cannot carry the day
Otherwise, the Establishment Clause would gag
secular officials from responding to religious entities
even when those entities have chosen to enter th

secular fray

We would have a different case on our hands hax
the defendants called upon Cardinal Levada to recant
his views on transubstantiation, or had urged
Orthodox Jews to abandon the laws of kashrut, o1
Mormons their taboo of alcohol. Those matters ot!
religious dogma are not within the secular arena in th:
way that same-sex marriage and adoption are. The
speech here concerns a controversial public issue that
affects the civic lives of the citizens of San Francisco
religious and nonreligious alike. [ would not constru:
the First Amendment to prohibit elected officials fron
speaking out, in their official capacities, on matters of
such clearly civil import, even if their speech
insolent, stupid, or worse. A church has every right t
take a firm moral position on secular issues, but it ha:

10 right to prevent public officials from criticizing

position on those secular issues — especially when o1
of its clergy fires the first salvo

l would affirm

GRABER, Circuit Judge, joined by KOZINSKI, Chief
Judge, and RYMER, HAWKINS, and McKEOWN,
Circuit Judges, dissenting on the issue of jurisdiction
but concurring in the judgment:

Plaintiffs Catholic League for Religious and Civil
Rights (“Catholic League”), Dr. Richard Sonnenshein,
and Valerie Meehan brought this 42 U.S.C. § 1983
action against Defendants City and County of San
Francisco, San Francisco Board of Supervisors
President Aaron Peskin, and Supervisor Tom
Ammiano, challenging their enactment of Resolution
of March 21, 2006, No. 168-06. Plaintiffs argue that
the resolution violates the Establishment Clause of the
First Amendment by impermissibly attacking
Plaintiffs’ religion, Catholicism. The _ resolution
concerns a Catholic cardinal and his directive to
Catholic Charities CYO of San Francisco (“Catholic
Charities”), a non-profit provider of social services, on
the topic of adoption by same-sex couples. I would not
reach the merits of this dispute. Instead, I would hold
that we lack jurisdiction over this case because
Plaintiffs lack Article III standing

The doctrine of standing requires that Plaintiffs
demonstrate a concrete and particularized injury
caused by the passage of Resolution No. 168-06. But
the resolution plainly applies (albeit in a non-binding,
hortatory way) only to persons and entities other than
Plaintiffs. Plaintiffs do not allege any form of concrete
and particularized injury resulting from the resolution

they allege only a deep and genuine offense. It is
bedrock principle of federal courts’ limited jurisdictior
that a person’s deep and genuine offense to a
defendant’s actions, without more, generally does not
suffice to confer standing. Here, Plaintiffs do not alleg:

more

The doctrine of standing not only ensures robust
litigation by interested parties, but also protects the
interests of those potential plaintiffs who have chosen,
for whatever reason, not to bring suit. Plaintiffs’
allegations suggest that several entities and
individuals—including Cardinal Levada, Archbishop
Niederauer, and Catholic Charities—likely have
standing. Just as much as we must resolve all case:
within our jurisdiction, we also must respect tl
decision by those persons and entities not to sue

Because a majority of the en banc panel holds tha
we have jurisdiction, I dissent from that portion of th.
disposition. But, because I agree with the judgment
affirming the district court’s dismissal of the action
concur in the judgment

FACTUAL AND PROCEDURAL HISTO!

Catholic Charities is an agency of the |;
Francisco Archdiocese of the Catholic Church.
operates as a non-profit provider of social services i
the Bay Area. Until 2006, Catholic Charities’ servi
included placing children with adoptive parent

In March 2006, Cardinal William Joseph Levada
the head of the Congregation for the Doctrine of the
Faith, issued a directive to Catholic Charities. The
lirective instructed Catholic Charities to stop placi

4U0a

children in need of adoption with same-sex couple:
The San Francisco Board of Supervisors responded by

unanimously adopting a non-binding resolution

[Resolution urging Cardinal Levada
withdraw his directive to Catholic Charitie:
forbidding the placement of children in need of
adoption with same-sex couples]

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 Sa
Franciscans when a foreign country, like the
Vatican, meddles with and attempts te
negatively influence this great City’s existing
and established customs and traditions such a
the right of same-sex couples to adopt and car
for children in need; and

WHEREAS, The statements of Cardina
Levada and the Vatican that “Catholic agenci:
should not place children for adoption in
homosexual households,” and “Allowing
children to be adopted by persons living in suc}
unions would actually mean doing violence
these children” are absolutely unacceptabl

e citizenry of San Francisco; and

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nat substantia! boay i body of law
in detail in this opinion but referenced
list form, in h

Furthermore, the list in majority opinion identifi
he constitutional issues that either the Suprem:
Court or we have addressed in an earlier case. Maj. 0]
it 17367-68. The majority then concludes that, becaus:
the courts have addressed those issues, surely
finding of standing in this case is consistent with thos
‘ases. See id. at 17369-70 (“If we conclude that
plaintiffs in the case before us have standing, we nee
10t decide whether those cases retain their vitality «
ire overruled, because our conclusion would
onsistent with them.”). But standing focuses on
plaintiff, not on the issue. That this case raise:

interesting constitutional issue similar to 1:

oa Lit

>

iddressed in previous cases Is, quite simply, beside ft]
point.” The relevant questions are whether
plaintiff has suffered a cognizable in

hat injurv is redressal

+}
Li

’ | 7
jury ana whnetn

ctrine for shutting the courthouse door to those whose cau
ve do not like.” Maj. op. at 17367. Indeed, at least some of tho
vho join this opinion might have been inclined to agree that th
lution violates the Establishment Clause, had a prop:
plaintiff brought this case. Equally important, however, standin:
s emphatically not a doctrine for opening the courthouse door t

eryone who wishes us to resolve their questions of constitutior

how » ’ ademicall, inter tine the

se questior

vwernmentail Foltctes or statu

In many cases, including recent ones, plaintiffs
have raised Establishment Clause challenges to
specific governmental policies or statutory provisions
See, e.g., Larson, 456 U.S. at 230-34 (state statute
imposing registration and reporting requirements on
“religious organizations’); Newdow v. Lefevre, 598 F.3d
638, 641 (9th Cir. 2010) (federal statute declaring the
national motto “In God We Trust”); Newdow v. Rio
Linda Union Sch. Dist., 597 F.3d 1007, 1012-13 (9th
Cir. 2010) (federal statute codifying the pledge of
allegiance as including the words “under God”);
Chaplaincy of Full Gospel Churches v. U.S. Navy (In re
Navy Chaplaincy), 534 F.3d 756, 758-59 (D.C. Cir
2008) (federal policy concerning navy chaplains
retirement benefits), cert. denied, 129 S. Ct. 1918
(2009); Graham v. Deukmejian, 713 F.2d 518, 519 (9th
Cir. 1983) (state policy requiring blood transfusions
during certain surgeries, contrary to religious beliefs
of Jehovah’s Witnesses); Flora v. White, 692 F.2d 53.
54 (8th Cir. 1982) (per curiam) (state constitutional
provision requiring certain officeholders and witnesses
to profess their belief in the existence of “a God”); se.
also Am. Family Ass’n v. City of San Francisco, 27%
F.3d 1114, 1119-20 (9th Cir. 2002) (municipal board of
supervisors formal disapproval of an advertising

aaa mcail r religious or ee oe ee
ampaign by religious groups);* cf. Smelt v. Cnty

In American Family, we did not discuss standing but, rathe
asserted jurisdiction over the Establishment Clause issue sul
silentio. Sub silentio holdings on jurisdiction occupy an interesting
place in our jurisprudence. We cannot ignore such holdings. See
KE. Enters. v. Apfel, 524 U.S. 498, 522 (1998) (“ ‘While we are not
bound by previous exercises of jurisdiction in cases in which our

power to act was not questioned but was passed sub silent

Ibs é onae.

challenge to federal statute concerning same
pul
have held that, if the statute or policy applies to tl
laintiff in a concrete manner, then the plaintiff h
tanding. See Larson, 456 U.S. at 241 (“The threaten
pplication of [the statutory provision] to the Chun
surely amounts to a distinct and palpable injury
the plaintiffsj: It disables them from. solicitii
yntributions in the State of Minnesota unless t
‘hurch complies with registration and_ reporti

|

marriages on other constitut ional grounds) The ce

equirements that are hardly de minimis Graha
13 F.2d at 519 (“The Witnesses must show that t
ive suffered injury, or that future inju

hreatened, as a result of the defendants’ conduct

Vitnesses have so alleged, claiming that

ransfusions are contrary to their religious beliefs a
iat California’s actions threaten to discou:
hysicians from performing certain operations with

h transfusions.” (citation omitted)). If the plair

LHe pI!

bject to the challenged

‘

kOUu : I repal

idicial authority assumed to be proper’ in p1
ruoting Brown Shoe Co. v. United States, 370 \
1962))). But their import necessarily is difficult to assess b

definition, there is no reasoning in the opinion that ws
pply to the case at hand. In any event, no difficulty is preset
ere, because the facts of American Family plainly establish t}
he standing requirements I discuss in text were met in that
which may explain our silence 6n the issue). For instance, I ta
idicial notice of the complaint in American Famuly. The plainti
here alleged the government's policy statement was direct
pecifically at the plaintiffs and that the statement prevented t
laintiffs from placing certain television advertisements that t
therwise would have placed

\ ’
] ‘ ‘ } ]

She

a
. ——
met

58a

other defendants, on the theory that they were
complicit). Id. at 609. After all, the plaintiffs “were
subjected to an unwelcome religious recitation at a
school function.” Jd. But whether the plaintiffs had
standing to challenge the school’s “past policy of
allowing prayer at graduation ceremonies| }
present[ed] a much closer issue.” Jd. The court
acknowledged that the school’s announcement to the
students at the mandatory rehearsal that, consistent
with the school’s tradition, the graduation ceremony
would include an invocation and_ benediction
constituted some _ personal contact with = an
endorsement of religion. 7d. at 609-10. Nevertheless,
the court concluded that the plaintiffs lacked standing
to pursue this claim, both because the plaintiffs’
contact with endorsement was insufficient and because
the plaintiffs did not allege that the past policy caused
them any particularized injury. /d.

3. Religious Display Cases

In a legion of cases, plaintiffs have challenged
religious displays. See, e.g., Lefevre, 598 F.3d at 640
(national motto “In God We Trust” on the nation’s
coins and currency); ACLU of Ky. v. Grayson Cnty.,
591 F.3d 837, 840-41 (6th Cir. 2010) (Ten
Commandments in county courthouse); Cooper, 577
F.3d at 484 (religious displays at post office); Green v.
Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784, 787-88
(10th Cir. 2009) (Ten Commandments on courthouse
green), cert. dented, 130 S. Ct. 1687 (2010); Caldwell v.
Caldwell, 545 F.3d 1126, 1128 (9th Cir. 2008)
(religious statements on public university’s website),
cert. dented, 129 S. Ct. 1617 (2009); Barnes-Wallace v.
City of San Diego, 530 F.3d 776, 783 (9th Cir. 2008)
(order) (Boy Scout symbols in public park), cert.

59a

denied, 130 S. Ct. 2401 (2010); Vasquez, 487 F.3d at
1247-48 (removal of cross on county seal); O'Connor v.
Washburn Univ., 416 F.3d 1216, 1218-19 (10th Cir.
2005) (statue of Roman Catholic bishop displayed at
public university in outdoor art show); Books uv.
Elkhart Cnty., 401 F.3d 857, 858 (7th Cir. 2005) (Ten
Commandments on public property); ACLU of Ohio
Found., Inc. v. Ashbrook, 375 F.3d 484, 487 (6th Cir.
2004) (Ten Commandments on courtroom wall);
Buono, 371 F.3d at 544 (cross on a hill); ACLU Neb.
Found. v. City of Plattsmouth, 358 F.3d 1020, 1024-25
(8th Cir. 2004) (Ten Commandments in public park),
adopted in relevant part, 419 F.3d 772, 775 n.4 (8th
Cir. 2005) (en banc); Glassroth v. Moore, 335 F.3d
1282, 1284 (llth Cir. 2003) (Ten Commandments
monument at Alabama State Judicial Building);
Adland v. Russ, 307 F.3d 471, 474-75 (6th Cir. 2002)
(Ten Commandments on public property); ACLU-Nd v.
Twp. of Wall, 246 F.3d 258, 260 (3d Cir. 2001) (holiday
display on public property); Books v. City of Elkhart,
235 F.3d 292, 294 (7th Cir. 2000) (Ten Commandments
on front lawn of municipal building); Suhre, 131 F.3d
at 1084 (Ten Commandments in county courthouse);
Separation of Church & State Comm. v. City of
Eugene, 93 F.3d 617, 618 (9th Cir. 1996) (per curiam)
(51-foot Latin cross on butte in city park); Doe v. Cnty.
of Montgomery, 41 F.3d 1156, 1157 (7th Cir. 1994) (the
words “THE WORLD NEEDS GOD” above entrance to
county courthouse); Washegesic v. Bloomingdale Pub.
Schs., 33 F.3d 679, 681 (6th Cir. 1994) (painting of
Jesus Christ in public school hallway); Gonzales v. N.
Twp. of Lake Cnty., 4 F.3d 1412, 1414 (9th Cir. 1993)
(crucifix in public park); Ellis v. City of La Mesa, 990
F.2d 1518, 1520 (9th Cir. 1993) (giant crosses on public
land and on city insignia); Murray, 947 F.2d at 149
(cross on city seal); Hewitt v. Joyner, 940 F.2d 1561,

60a

1562-63 (9th Cir. 1991) (religious statues in public
park); Harris v. City of Zion, 927 F.2d 1401, 1402 (7th
Cir. 1991) (crosses on city seal); Freedom from Religion
Found., Inc. v. Ztelke, 845 F.2d 1463, 1465 (7th Cir.
1988) (Ten Commandments in public park); Saladin,
812 F.2d at 688-89 (the word “Christianity” on city
seal); ACLU of Ill. v. City of St. Charles, 794 F.2d 265,
267 (7th Cir. 1986) (ighted cross on public property);
Hawley v. City of Cleveland, 773 F.2d 736, 737 (6th
Cir. 1985) (chapel in public airport); Rabun Cnty., 698
F.2d at 1100-01 (lighted cross in a public park); see
also McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 851
(2005) (“‘large, gold-framed copies” of the Ten
Commandments at county courthouses “posted in a
very high traffic area of the courthouse” (internal
quotation marks omitted)); Van Orden v. Perry, 545
U.S. 677, 681 (2005) (Ten Commandments monolith
standing “6-feet high and 3 1/2-feet wide” in public
park); Cnty. of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573, 578 (1989) (créche in county
courthouse and menorah outside county building);
Lynch v. Donnelly, 465 U.S. 668, 671 (1984) (Creche
containing figures “ranging in height from 5 [inches] to
5 [feet]”).° In each case, the plaintiffs alleged that they
were deeply offended by the presence of the religious
display on public property and sought its removal.

° In the four cases following the “see also” indicator, I again list
the cases in which the Supreme Court did not discuss standing
but, rather, asserted jurisdiction over the Establishment Clause
issue sub silentio. As explained above, supra note 4, sub silentio
holdings on jurisdiction can present interesting challenges. But,
here again, as with the cases noted in the preceding footnotes, the
facts of the listed cases plainly establish that the standing
requirements I discuss 1n text were met.

6la

The courts consistently have applied the same
general legal rules. A plaintiff has standing to
challenge a religious display if he or she alleges a
change in behavior (for instance, affirmative avoidance
of the religious display). Rabun Cnty., 698 F.2d at
1108. But, although an allegation of a change in
behavior is sufficient to confer standing, it is not
required. Vasquez, 487 F.3d at 1251-52; Suhre, 131
F.3d at 1087-88; Foremaster v. City of St. George, 882
F.2d 1485, 1490-91 (10th Cir. 1989); Saladin, 812 F.2d
at 692-93.’ A plaintiff also has standing when he or
she has alleged “direct and unwelcome contact” with
the religious display. Grayson Cnty., 591 F.3d at 843;
Green, 568 F.3d at 794; Books, 401 F.3d at 861; City of
Plattsmouth, 358 F.3d at 1030; accord Lefevre, 598
F.3d at 642 (“unwelcome direct contact”); Caldwell,
545 F.3d at 1132 (same); Vasquez, 487 F.3d at 1253
(same); Ashbrook, 375 F.3d at 490 (“direct, unwelcome
contact”); Suhre, 131 F.3d at 1088 (“direct unwelcome
contact”). In the absence of “direct and unwelcome
contact,” however, a plaintiff cannot meet the standing
requirements, even if he or she has contact with a
religious display and is offended by it: “In certain
cases, a plaintiff's contact with an allegedly offensive
religious or anti-religious symbol will remain too

* The Seventh Circuit’s position on this point is a bit uncertain.
Compare Zielke, 845 F.2d at 1467 (suggesting that an allegation
that the plaintiff altered behavior is necessary to establish
standing), with Cnty. of Montgomery, 41 F.3d at 1161 (discussing
Zielke and suggesting that its holding was not so broad); see also
City of Plattsmouth, 358 F.3d at 1029 n.7 (“It appears likely the
Seventh Circuit has disowned the ‘altered behavior’ test and
distinguished this language contained in Zielke.” (citing Cnty. of
Montgomery, 41 F.3d at 1160-61)). At most, the Seventh Circuit
constitutes a minority of one circuit.

62a

tenuous, indirect, or abstract to give rise to Article III
standing.” Vasquez, 487 F.3d at 1251; see also
Caldwell, 545 F.3d at 1132-33 (holding that the
plaintiff's injury was insufficient for standing purposes
because of the tenuous nature of the connection
between a website user and the religious message on
a webpage and because her contact with the web site
was less forced than in Vasquez); Cnty. of Montgomery,
41 F.3d at 1161-62 (holding that a lawyer did not have
standing to challenge a religious display in a
courthouse where the lawyer had not alleged that he
would have any contact with the display); Washegesic,
33 F.3d at 682 (noting that “psychological harm alone
is not always a sufficient injury for standing purposes
when contact [with a religious display such as a
picture of Jesus Christ in a school’s hallway] is
indirect”); Harris, 927 F.2d at 1406 (holding that “the
fact that the plaintiffs may be offended by the seals. . .
does not confer standing”).

A plaintiff who challenges a religious display meets
the “direct and unwelcome contact” requirement by
demonstrating some level of frequent or regular
contact with the display during the course of the
plaintiffs regular routine, such that the plaintiff was
“forced” to encounter the display. For example, in
Vasquez, 487 F.3d at 1251-52, the plaintiff challenged
the existence of a cross on a county seal—which he
encountered on a regular basis as a county resident
and county employee. We held that the plaintiff had
standing because he “held himself out as a member of
the community where the seal is located, as someone
forced into frequent regular contact with the seal, and
perhaps most importantly, as someone ‘directly
affected’ by his ‘unwelcome direct contact’ with the

63a

seal.” Id. at 1251 (emphases added). We explained
further:

Unlike plaintiffs in Valley Forge, who were
physically removed from defendant’s conduct,
Vasquez is a member of the community where
the allegedly offending symbol! is located, and
his contact with the symbol was frequent and
regular, not sporadic and remote. In fact, .. .
the offending symbol “will be displayed on
county buildings, vehicles, flags, stationary
{sic], forms, commendations, uniforms, and
elsewhere through LA County,” thereby forcing
Vasquez into unwelcome “daily contact and
exposure” of the most pervasive kind. These
facts and allegations make Vasquez’s status
fundamentally different from that of plaintiffs
in Valley Forge.

Id. at 1252 (emphases added).

As another example, in Suhre, 131 F.3d at 1084-85,
the plaintiff challenged a display of the Ten
Commandments in the main courtroom of the county
courthouse. The Fourth Circuit held that the plaintiff
had standing because of his regular visits to that
courtroom, both as a frequent litigant and as a
participant in local government meetings (as a plaintiff
and witness in past civil actions, as a defendant in
criminal actions, and as an attendee at four past
meetings of local government). Jd. at 1090. The court
found it relevant that the plaintiff “must confront the
religious symbolism whenever he enters the courtroom
on either legal or municipal business.” Jd. (emphasis

added).

64a

Vasquez and Suhre are but two examples: In all
other cases, too, the courts have held that the plaintiff
has standing because of some level of regular or
frequent contact with the religious display during the
course of the plaintiffs routine business. See, e.g.,
Lefevre, 598 F.3d at 642 (the plaintiff encounters the
national motto on “coins and currency in everyday life”
which “forces him repeatedly to encounter a religious
belief he finds offensive” (emphasis added)); Green, 568
F.3d at 793-94 (the plaintiff visits the courthouse “on
a weekly basis” for business and avocational purposes
and “cannot avoid” the religious display); O’Connor,
416 F.3d at 1223 (the plaintiff professor and student
“were frequently brought into direct and unwelcome
contact” with a religious display “at a prominent
location on campus” (emphasis added)); Ashbrook, 375
F.3d at 489-90 (the plaintiff “who travels to and must
practice law within [the relevant] courtroom from time
to time” and who “has and would continue to come into
direct, unwelcome contact with the Ten
Commandments display, the removal of which would,
no doubt, prevent further injury to him” (emphases
added)); Glassroth, 335 F.3d at 1292 (“The three
plaintiffs are attorneys whose professional duties
require them to enter the Judicial Building regularly,
and when they do so they must pass by the
monument.” (emphases added)); Saladin, 812 F.2d at
692 (the plaintiffs “regularly receive correspondence on
city stationery bearing the seal [that contains the word
‘Christianity” (emphasis added)); see also Twp. of
Wail, 246 F.3d at 266 (noting that it was relevant
whether the plaintiff visited a holiday display only “to
describe the display for this litigation or whether, for
example, he observed the display in the course of
satisfying a civic obligation”).

65a

To be sure, courts have “recognized that ‘(tlhe
practices of our own community may create a larger
psychological wound than someplace we are just
passing through.’” Suhre, 131 F.3d at 1087 (alteration
in original) (quoting Washegesic, 33 F.3d at 683).
Accordingly, “where there is a personal connection
between the plaintiff and the challenged display in his
or her community, standing is more likely to lie.” /d.;
see also City of Plattsmouth, 358 F.3d at 1030 (“That
the injuries are caused by [the plaintiffs] own City is
all the more alienating.”); City of St. Charles, 794 F.2d
at 268 (“Maybe it ought to make a difference if... a
plaintiff is complaining about the unlawful
establishment of a religion by the city, town, or state
in which he lives.”). But no court has adopted a per se
rule that the location of a religious display in the
plaintiffs hometown or home state automatically
confers standing on the plaintiff. See Suhre, 131 F.3d
at 1087 (holding that, where the display is in the
plaintiffs community, “standing is more likely to lie”
only “where there is a personal connection between the
plaintiff and the challenged display” (emphases
added)); Rabun Cnty., 698 F.2d at 1107 (holding that
the location of the display in the plaintiffs’ home state
was one of several relevant “factors”). As in all cases,
even when the religious display is in the plaintiffs
hometown, the plaintiff must establish direct and
unwelcome contact with the display. See, e.g., Suhre,
131 F.3d at 1090 (determining whether the plaintiff
has the requisite direct and unwelcome contact with
the display, even though the display is located in the
plaintiffs municipality).

Finally, the injury arises not purely from the
psychological harm of viewing the display, but from
the consequence of that harm. That is, a plaintiffs

66a

negative reaction to a religious display on public
property interferes with the plaintiffs right to “ ‘freely
use public areas.’ ” Ellis, 990 F.2d at 1523 (quoting
Hewitt, 940 F.2d at 1564); accord Ouachita Parish, 274
F.3d at 292 (“use or enjoyment of a public facility”);
City of Eugene, 93 F.3d at 619 n.2 (“freely using the
area on and around [the public park]”); Gonzales, 4
F.3d at 1417 (“full use and enjoyment of the public
park”); Hawley, 773 F.2d at 740 (“impairment of their
beneficial use of a public facility which they frequently
use”). “We have repeatedly held that inability to
unreservedly use public land suffices as injury-in-fact.
Such inhibition constitutes ‘personal injury suffered
. as a consequence of the alleged constitutional
error, beyond simply ‘the psychological consequence
presumably produced by observation of conduct with
| which one disagrees.” “ Buono, 371 F.3d at 547
(citations omitted) (ellipsis in original) (quoting Valley
Forge, 454 U.S. at 485); see also Barnes-Wallace, 530
F.3d at 784 (“As in Buono, [the plaintiffs) have alleged
injuries beyond ‘the’ psychological consequence
presumably produced by observation of conduct with
which they disagree,’ because their inhibition
interferes with their personal use of the land.”
(brackets omitted) (quoting Valley Forge, 454 U.S. at
485)).

B. Resolution No. 168-06 and Alleged Harm te
Plaintiffs

Plaintiffs challenge Resolution No. 168-06. They
allege that the resolution “attacks [their] deeply held
religious beliefs,” “stigmatizes Plaintiffs on account of
their religious beliefs,” and “sends a clear message . . .
that they are outsiders, not full members of the
political community.” Plaintiffs allege that, as

asaennernneettel

67a

residents of San Francisco and members of the
Catholic Church, the resolution “chill[s] their access to
the government.” “As a result of [the] resolution,
Plaintiffs ... will curtail their activities to lessen their
contact with Defendants, thereby causing further
harm.”

In some ways, Plaintiffs’ allegations evince a much
stronger connection to the challenged governmental!
action than the plaintiffs’ allegations in Valley Forge.
The plaintiffs in Valley Forge had never visited, and
had no other connection to, the land in question. Here,
Plaintiffs reside in San Francisco, and Defendants
operate as the San Francisco municipal government.
There is no geographical separation. Additionally,
Plaintiffs view the resolution as a direct attack on
their specific religion: Catholicism. There may be some
stronger connection to the challenged government
action when the action is perceived as a direct attack
on one’s own religion, as distinct from a more general
offense that the government is condoning or conveying
religious messages with which one generally disagrees
or to which one does not adhere. I acknowledge that
Plaintiffs’ residency and their perception of the
government action as attacking their specific religion
distinguish this case in significant ways from the
Supreme Court’s Valley Forge decision.

In other ways, however, the allegations in the
complaint suggest that Plaintiffs are more akin to
“concerned bystanders,” Valley Forge, 454 U.S. at 473
(internal quotation marks omitted), who have suffered
no injury “other than the psychological consequence
presumably produced by observation of conduct with
which one disagrees,” id. at 485. The parties do not
dispute that the resolution is entirely non-binding and

68a

that it has no legal effect. It confers no benefits or legal
rights. It imposes no obligations or responsibilities on
anyone. It alters no government process, ordinance, or
plan. In short, it does not do anything, other than to
“urge” Cardinal Levada to withdraw his directive
concerning Catholic Charities’ adoption policies. This
hortatory resolution is like precatory text in a statute’s
preamble, which plaintiffs lack standing to challenge
unless the text applies to them “in some concrete way.”
Webster v. Reprod. Health Servs., 492 U.S. 490, 506
(1989); see also id. at 504-07 (discussing this issue
generally).

As discussed above, Plaintiffs are not the first to
challenge a governmental policy or provision.® And, as
discussed above, the courts have developed consistent
requirements for establishing standing: In order to
establish standing, Plaintiffs must allege that the
provision applies to them in some direct and concrete
manner. Plaintiffs’ allegations here do not suffice.

Plaintiffs do not, and could not, claim that they are
subject to the provisions of the non-binding resolution
They do not claim to be subject to the government’s

° The majority opinion incorrectly asserts that I conclude that this
case does not involve a challenge to a governmental policy or
provision. Maj. op. at 17369-70 n.26. To the contrary, Plaintiffs
here challenge a resolution enacted by Defendants, and I agree
completely with the majority that “an official resolution of the City
of San Francisco is indeed a case involving a specific governmental
policy.” Jd. (internal quotation marks and brackets omitted). In
text, lapply, as we must, the clear standing requirements that we
and other courts have developed in cases involving challenges to
governmental policies. The majority opinion fails even to
acknowledge those requirements or, in large degree, even the
relevant cases.

69a

action—the “urging” of Cardinal Levada to retract his
earlier directive. Instead, they claim harm from the
“message” that the resolution’s terms “sends” to
Plaintiffs. I agree with the District of Columbia Circuit
that, “[w]hen plaintiffs are not themselves affected by
a government action except through their abstract
offense at the message allegedly conveyed by that
action, they have not shown injury-in-fact to bring an
Establishment Clause claim.” Jn re Navy Chaplaincy,
534 F.3d at 764-65.

Plaintiffs here have expressed their deep and
genuine offense. Their status as Catholics and San
Francisco residents distinguishes their concerns, at
least to some extent, from the concerns of others who
may view the resolution as offensive. In the end,
however, the resolution carries no legal effect and,
perhaps most importantly, does not apply to Plaintiffs.

Plaintiffs effectively ask us to hold that any person
has standing to challenge any governmental! action on
Establishment Clause grounds, so long as the plaintiff
resides within the government’s territory and is
offended by the action’s alleged attack on the plaintiffs
religion. As discussed above, in Part A, a governmental
action within one’s own community suggests that
standing is more likely to lie. But the courts have
declined to apply a per se rule that those who reside
within the geographic boundaries of the government
automatically have standing to challenge the
government’s actions. Instead, the courts have
required a showing that the challenged action actually
affects these particular plaintiffs. Resolution No.
168-06 simply does not apply to Plaintiffs.

70a

Nor does the fact that Plaintiffs perceive the
resolution as a direct attack on their specific religion
suffice to meet the “particularized” requirement.” In
that regard, Plaintiffs’ claims here are
indistinguishable from the plaintiffs’ claims in Flora,
692 F.2d at 54. There, the atheist plaintiffs, who
resided in Arkansas, challenged a state constitutional
provision that barred atheists from certain civic
opportunities. /d. The Eighth Circuit held that, unless
the plaintiffs could demonstrate that they had been, or
would be, actually subject to the provision (which they
could not), the plaintiffs lacked standing. Jd. Citing
Valley Forge, the court rejected the plaintiffs’ theory
that, “as atheists, they have suffered adverse
psychological consequences as a result of the continued
presence of this section in the Arkansas Constitution.”
Id. Like the Arkansas atheists in Flora, the San
Francisco Catholics here cannot demonstrate that they
are subject to the challenged provision, even though

* It is easy to overstate this distinction. A person who adheres to
a religion other than, for example, Christianity may perceive the
government’s placement of a cross on a hill as a direct negative
attack on that person’s non-Christian religion, rather than as an
affirmative endorsement of Christianity. Precisely for this reason,
the courts have treated an endorsement and a disapproval as two
sides of the same coin in the Establishment Clause context. See,
eg., Lynch, 465 US. at 688 (O'Connor, J., concurring)
(“Endorsement sends a message to nonadherents that they are
outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders,
favored members of the political community. Disapproval sends
the opposite message.”). Similarly, an atheist might view the
national motto, “In God We Trust,” as an attack on his or her
religious beliefs. But that fact is insufficient to confer standing.
Lefevre, 598 F.3d at 643. I therefore decline to attribute much
significance to this distinction for standing purposes

dla

they allege adverse psychological consequences as a
result of the resolution’s pussage. Accordingly,
Plaintiffs do not have standing

The same analysis applies to our recent decisions
involving atheist plaintiffs’ challenge to the national
motto, “In God We Trust,” Lefevre, 598 F.3d at 643,
and to the inclusion of the words “under God” 1n the
national pledge of allegiance, Rio Linda, 597 F.3d at
1016. In those cases, the plaintiffs challenged not only
the federal statute declaring our national motto and
the federal statute adding the words “under God” to
our pledge of allegiance, but the plaintiffs also
challenged the statutes and policies that required that
the motto be inscribed on our coins and currency and
that the pledge be recited in schools. Lefevre, 598 F.3d
at 643; Rio Linda, 597 F.3d at 1016. We held that the
plaintiffs lacked standing to challenge the first type of
statute: the federal statute declaring our national
motto, Lefevre, 598 F.3d at 643, and the federal statute
adding the words “under God” to our pledge of
allegiance, io Linda, 597 F.3d at 1016. The fact that
a statute on the books made the plaintiff feel like a
“political outsider| |” and “inflictled] a stigmatic
injury” was “insufficient to confer standing.” Lefevre,
598 F.3d at 643; see also Rio Linda, 597 F.3d at 1016
(holding that, “because the Pledge docs not mandate
that anyone say it, [the plaintiff] has no personal
injury to contest its wording in the courts” and
therefore lacks standing to challenge the federal
statute declaring the pledge). By contrast, we held that
the plaintiff did have “standing to challenge the
statutes that require the inscription of the motto on
coins and currency .. . given the ubiquity of coins and
currency in everyday life,” Lefeure, 598 F.3d at 642,

and that plaintiff parents of schoolchildren did have

(2a
standing to challenge the state statute and school
district policy permitting teachers to lead students
through recitation of the pledge of allegiance, Rio
Linda, 597 F.3d at 1016. Those statutes had a direct
effect on the plaintiffs.

Here, Plaintiffs challenge the resolution only. As in
Lefevre and Rio Linda, Plaintiffs allege that the
governmental action makes them feel like political
outsiders and stigmatizes them because of their
religious beliefs. And, as in Lefevre and Rio Linda,
those allegations are insufficient. Plaintiffs’ contact
with the resolution here is no greater than the
plaintiffs’ contact with the federal statutes at issue in

Lefevre and Rio Linda.

In those cases, we held, of course, that the plaintiffs
had standing to challenge other statutes and policies
those statutes that put the plaintiffs in direct and
unwelcome contact with the religious statement or
religious exercise. But, in this case, there are no such
other statutes or policies and no such direct and
unwelcome contact. Clearly, Defendants have in no
way inscribed the resolution on an item of everyday
life such that Plaintiffs must encounter it, and
Defendants have in no way required Plaintiffs to
participate in a daily recitation of the resolution
Plaintiffs’ challenge is limited to the resolution itself,
which sets forth Defendants’ policy statement on a
matter of concern to the City—the precise parallel to
the federal statutes setting forth our national motto
and pledge of allegiance. Just as the plaintiffs’ dee;
offense at the national motto and pledge of allegiance
could not confer standing, neither can Plaintiffs’ deep
offense at Defendants’ resolution confer standing here

T3a

In conclusion, Plaintiffs’ allegations are, in all
relevant respects, identical to the plaintiffs’ allegations
in our recent decisions in Rio Linda and Lefevre and to
the plaintiffs’ allegations in Flora. Just as the
allegations in those cases were insufficient to confer
standing, so too are Plaintiffs’ allegations here.

The majority fails to grapple with our holdings in
Rio Linda and Lefevre. In particular, our holding in
Lefevre, 598 F.3d at 643, applies with equal force here:
“Although [Plaintiffs] allege[ } the [resolution] turns
[Catholics] into political outsiders and inflicts a
stigmatic injury upon them, an ‘abstract stigmatic
injury resulting from such outsider status is
insufficient to confer standing.” The majority
distinguishes those cases, and all other precedent, only
on the ground that this case involves an unambiguous
condemnation of a specific religion, while previous
ones involved “vague and general religiosity.” Maj. op.
at 17370 n.26. As an initial matter, despite the great
number of previous decisions involving challenged
governmental actions, the majority cites not a single
one in which the ambiguity or plainness of the
perceived condemnation or endorsement of religion is
even mentioned by a reviewing court for purposes of
the standing inquiry. I do not, of course, question that
Plaintiffs view the resolution as an attack on their
religion. Similarly, though, courts in previous cases
have not questioned that the plaintiffs viewed the
challenged governmental action as an attack on, or an
endorsement of, a specific religion. Whether the
members of the reviewing court perceive the alleged
attack or endorsement as “plain” or “ambiguous”
seems fraught with difficulty. And, in many of the
cases [ have cited, [see no ambiguity. For example, the
statute declaring our motto as “In God We Trust” is an

74a

una

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0938%3A1. Public record. Not legal advice.