Opposition Brief — Catholic League for Religious & Civil Rights v. City & County of San Francisco

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In The Eh FYE CLERK

Supreme Court of the United States

——— .

CATHOLIC LEAGUE FOR RELIGIOUS AND

CIVIL RIGHTS, DR. RICHARD SONNENSHEIN,

and VALERIE MEEHAN,

Petitioners,

Vi

CITY AND COUNTY OF SAN FRANCISCO,

AARON PESKIN, in his official capacity as Pre sident,

Board of Supervisors of San Francisco, and

TOM AMMIANO, in his official capacity as a Supervisor,

Board of Supervisors for San Francisco,

Respondents.

$$ $$$ &

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

*

BRIEF OF RESPONDENTS CITY AND COUNTY

OF SAN FRANCISCO, AARON PESKIN AND

TOM AMMIANO IN CPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

——_—_—__-—— ¢ ——-—___-___——_-

DENNIS J. HERRERA

City Attorney

THERESE M. STEWAR'

Chief Deputy City Attorney

WAYNE SNODGRASS

VINCE CHHABRIA

Counsel of Record

CHRISTINE VAN AKEN

Deputy City Attorneys

City Hall, Room 234

One Dr. Carlton B. Goodlett Plac

San Francisco, CA 94102-4682

Telephone: (415) 554-4674

Facsimile: (415) 554-4747

vince.chhabria@sfgov.org

Attorneys for Respondents City

and County of San Francisco,

Aaron Peskin and Tom Ammuiarno

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2851

QUESTION PRESENTED

Should the Court grant certiorari to revisit. the

nonprecedential opinion of three judges from = an

eleven-member en banc panel of the Ninth Circuit

that the San Francisco Board of Supervisors did not

violate the Establishment Clause when it passed a

nonbinding resolution criticizing a religious leader for

directing a social service agency in San Francisco to

stop placing children for adoption with same-sex

couples?

The Considerations document further specified

that Catholic lawmakers must oppose efforts to place

children for adoption with same-sex couples. That is

because, according to the statement, “[a]llowing

children to be adopted by persons living in such

unions would actually mean doing violence to these

children, in the sense that their condition of depend-

ency would be used to place them in an environment

that is not conducive to their full human develop-

ment.” Jd. at 4.

In March 2006 (roughly three years after the

Vatican published the “Considerations” document),

Cardinal Wiliam Joseph Levada, by then head of the

Congregation for the Doctrine of the Faith but for-

merly the Archbishop in San Francisco, issued a

directive to the Archdiocese of San Francisco that

“Catholic agencies should not place children for

adoption in homosexual households.” Jd. Cardinal

Levada cited the 2003 Considerations document in

support of his directive. Jd. As a result, the Arch-

diocese of San Francisco announced it would no

longer allow same-sex couples to adopt children

through its Catholic Charities agency. /d.

This directive was generally not well-received in

San Francisco. The San Francisco Chronicle pub-

lished a stinging editorial, which asserted that the

Vatican should be more concerned with “a backlog of

some 700 priest-abuse cases” than with “enforcing

outdated edicts that rip [communities] apart.” Cardt-

nal Levada’s Edict, S.F. Chron., Mar. 19, 2006, at D-6.

Then-Mayor Gavin Newsom, one of the Catholic

politicians the Considerations document sought to

influence, cancelled a trip to the Vatican in protest.

Pat Murphy and Luke Thomas, Vatican opposition to

LGBT adoption prompts Newsom to nix Rome trip,

Fog City J. Mar. 13, 2006.’

For its part, the San Francisco Board of Super-

visors adopted a _ resolution criticizing Cardinal

Levada’s directive and urging him to withdraw it. The

resolution was sponsored by then-Supervisor Tom

Ammiano, another Catholic politician. See Cardinal

Levada’s Edict, supra. The resolution, reproduced

here without all the bold and italics added by peti-

tioner, stated as follows:

Resolution urging Cardinal William

Levada, in his capacity as head of the

Congregation for the Doctrine of the

Faith at the Vatican, to withdraw his

discriminatory and defamatory direc-

tive that Catholic Charities of the Arch-

diocese of San Francisco stop placing

children in need of adoption with ho-

mosexual households.

WHEREAS, It is an insult to all San

Franciscans when a foreign country, like

the Vatican, meddles with and attempts to

1

In the proceedings below, the City requested judicial

notice of the news articles cited herein, not to prove the truth of

their contents, but to demonstrate the assertions they contained

were in the public realm. The district court denied the request,

and the Ninth Circuit, while not commenting on whether the

articles were subject to judicial notice, did not rely on them.

negatively influence this great City’s existing

and established customs and traditions such

as the right of same-sex couples to adopt and

care for children in need; and

WHEREAS, The statements of Cardinal

Levada and the Vatican that “Catholic agen-

cies should not place children for adoption in

homosexual households,” and “Allowing chil-

dren to be adopted by persons living in such

unions would actually mean doing violence to

these children” are absolutely unacceptable

to the citizenry of San Francisco; and,

WHEREAS, Such hateful and discrimi-

natory rhetoric is both insulting and callous,

and shows a level of insensitivity and ig-

norance which has seldom been encountered

by this Board of Supervisors; and

WHEREAS, Same-sex couples are just

as qualified to be parents as are heterosexual!

couples; and

WHEREAS, Cardinal Levada is a de-

cidedly unqualified representative of his

former home city, and the people of San

Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors

urges Archbishop Niederauer and the Catho-

lic Charities of the Archdiocese of San Fran-

cisco to defy all discriminatory directives of

Cardinal Levada; now, therefore, be it

RESOLVED, That the Board of Super-

visors urges Cardinal William Levada, in his

capacity as head of the Congregation for the

Doctrine of the Faith at the Vatican (for-

merly known as Holy Office of the Inquisi-

tion), to withdraw his discriminatory and

defamatory directive that Catholic Charities

of the Archdiocese of San Francisco stop plac-

ing children in need of adoption with homo-

sexual households.

Pet. App. 5a-6a.

Cardinal Levada, the former Archbishop of San

Francisco, was likely unsurprised by this reaction.

After all, the City is a worldwide leader in the strug-

gle for lesbian and gay equality. It is one of the first in

the nation to officially recognize domestic partner-

ships for same-sex couples. Pet. App. 99a. Entities

that have contracts with the City are required to

provide the same benefits to the domestic partners of

their lesbian and gay employees as they provide to

the spouses of their heterosexual married employees.

Id. Since 2004, the City has been at the forefront of

the legal fight to guarantee same-sex couples the

right to marry in California. Jd. And the Board of

Supervisors regularly passes nonbinding resolutions

relating to discrimination against lesbians and gay

men. Between 2000 and 2006, it passed at least 4]

such resolutions, including:

¢ A resolution criticizing the IRS for refusing

to recognize domestic partnerships. Resp.

C.A. Br. 17.

¢ A resolution denouncing the Russian au-

thorities for standing by during Moscow’s

first Gay Pride parade while gay men and

6

lesbians were assaulted, and singling out the

mayor of Moscow for portraying homosexuals

as “sexual deviants.” /d.

¢ A resolution denouncing then-Secretary of

Education Margaret Spellings for her criti-

cism of a television show that depicted a les-

bian couple in a positive light and urging her

to retract her statement, issue a public apol-

ogy and “make a public statement in support

of tolerance, multiculturalism and _ free

speech.” /d. at 18.

¢ Aresolution condemning the public relations

director of the San Francisco 49ers for cre-

ating an instructional video for the players

that was viewed as offensive and discrimin-

atory towards gay men and lesbians, and

urging the team to work with the City’s Hu-

man Rights Commission to “develop a plan of

action for preventing future discrimination.”

Id.

¢ A resolution describing the statements of

then-Senator Rick Santorum about homo-

sexuality as “discriminatory” and “hurtful”

and urging him to step down from his Senate

leadership post. /d.

¢ A resolution urging Dr. Laura Schlessinger

to refrain from making discriminatory

statements about gay men and lesbians, and

urging that her show be taken off the air if

such statements continued. /d.

2. Petitioners — a Catholic advocacy group and

two of its individual San Francisco members — sued

~]

the City in federal court, alleging the Board’s resolu-

tion violated the Establishment Clause. The district

court granted the City’s motion to dismiss for failure

to state a claim. Applying the three-pronged test of

Lemon v. Kurtzman, 403 U.S. 602 (1971), the court

first held the Resolution’s primary purpose was “to

denounce discrimination against same-sex couples,

and to try to preserve for San Francisco children the

opportunity to be placed for adoption with qualified

families without regard to sexual orientation.” Pet.

App. 126a. The court rejected the notion that the

more incendiary aspects of the Resolution evinced

an anti-religious purpose, because “any criticism of

Catholic leaders or policies are presented in the

context of same-sex adoption — a secular dimension of

the City’s culture and tradition that the City believes

is threatened by the specific directive issued to the

Archdiocese.” Jd. at 127a. For similar reasons, the

district court concluded the Resolution did not run

afoul of Lemon’s “primary effect” prong, because a

reasonable observer familiar with the context and

timing of the Resolution, and with the City’s history

of promoting lesbian and gay equality, would conclude

the Resolution was intended to be secular. Applying

the third prong of Lemon, the district court rejected

the notion that the Resolution created excessive

entanglement with religion, reasoning: “There is no

regulatory enforcement, no law adopted nor other

action taken by virtue of the Resolution. It is merely

the exercise of free speech rights by duly elected office

holders.” Id. at 135a.

8

3. <A three-judge panel of the Ninth Circuit

affirmed. The panel concluded the Board’s secular

purpose was evident from the title and preamble of

the Resolution, which focused singularly on the

Board’s desire that Catholic Charities continue to

place children for adoption with same-sex couples.

Pet. App. 96a-97a. The panel also emphasized the

timing of the resolution, observing that the Board did

not act in response to the more general Considera-

tions document released in 2003, but three years

later, in response to Cardinal Levada’s policy di-

rective concerning adoptions in San Francisco. /d. at

97a.

Applying Lemon’s “effects” prong, the panel

acknowledged that “there are statements in the

Resolution that, taken in isolation, may be said to

convey disparagement towards the Catholic Church,”

but concluded that “[clonsidering the Resolution as a

whole, with its focus on the City’s tradition of promot-

ing and defending same-sex relationships,” those

isolated statements did not “overwhelm the Resolu-

tion’s secular dimensions.” Pet. App. 105a. And the

panel emphasized the City’s longstanding practice of

promoting lesbian and gay equality, including the

Board’s practice of doing so by way of nonbinding

resolution:

Just as the “overall holiday setting” can

change the message conveyed by a creche,

and a “typical museum setting, though not

neutralizing the religious content of a re

ligious painting, negates any message of

9

endorsement of that content,” ... the Board’s

well-established practice of responding when-

ever the equality of gay and lesbian families

is called into question necessarily colors the

message conveyed by the Resolution. In

adopting the Resolution, consistent with past

practices, the Board sought to champion

same-sex families and nondiscrimination as

to gays and lesbians. An objective observer

would understand as much.

Pet. App. 108a (quoting Lynch v. Donnelly, 465 U.S.

668, 692 (1984) (O’Connor, J., concurring)).

Responding to petitioner’s central argument

(namely, that the resolution expressed hostility

towards central aspects of Catholic religious doc-

trine), the panel acknowledged that “what the Board

considers secular, Catholic League considers hostile

to Catholic religious tenets.” /d. at 99a. But the panel

reasoned that “the government is not stripped of its

secular purpose simply because the same concept can

be construed as religious.” Jd. at 99a-100a (quoting

extensively McGowan v. Maryland, 366 U.S. 420, 442

(1961) and Bowen v. Kendrick, 487 U.S. 589, 612-13

(1988)).

Judge Berzon wrote a concurring opinion stating

that the majority opinion “carefully and faithfully

applie[d] contemporary Establishment Clause ju

risprudence to an unusual circumstance, the dis-

approval rather than approval of religion, embodied

in a single Board of Supervisors resolution linked to

no affirmative governmental! regulation nor displayed

LO

in any continuing fashion in any public location.” Pet.

App. 112a, 113a. Had the government speech been

accompanied by regulation, had the City broadcast

the speech in a “more intrusive and permanent way,”

or had the City enacted a series of similar resolutions

rather than just one, the outcome of the case might be

different. Pet. App. 114a.

4. An en banc panel of the Ninth Circuit voted

8-3 to affirm the district court’s dismissal of the

complaint, but without agreement by a majority on

the correct reason to affirm. Five members of the

panel concluded petitioners lacked standing, three

members concluded petitioners had standing but the

resolution did not violate the Establishment Clause,

and three members concluded petitioners had stand-

ing and the resolution did violate the Establishment

Clause.

Judge Graber, writing for the five judges who

found a lack of standing, deemed petitioners “akin to

‘concerned bystanders’ ... who have suffered no

injury ‘other than the psychological consequence

presumably produced by observation of conduct with

which one disagrees.’” Pet. App. 67a (quoting Valley

Forge Christian Coll. v. Americans United for Separa-

tion of Church & State, Inc., 454 U.S. 464, 473, 485

(1982)). Reasoning that the resolution did not apply

to petitioners, but rather to Cardinal Levada, the San

Francisco Archdiocese and Catholic Charities, Judge

Graber’s opinion concluded:

11

Plaintiffs here have expressed their deep

and genuine offense. Their status as Cath-

olics and San Francisco residents distin-

guishes 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 more importantly, does not ap-

ply to Plaintiffs.

Pet. App. 69a.

Writing for the three judges who concluded

petilioners had standing but failed to state an Estab-

lishment Clause claim on the merits, Judge Silver

man focused on both the text and the context of the

resolution to determine that the City had not run

afoul of the first or second prongs of Lemon. Regard-

ing the text, Judge Silverman stated: “The reasons

given [by the resolution for its opposition to Cardinal

Levada’s directive] are purely secular, not theological.

For example, the resolution contains nothing like,

‘The Church has misread the Bible” or ‘Our God

approves of same-sex marriage.’” Pet. App. 35a.

* Judge Graber also rejected petitioner’s analogy to Estab

lishment Clause cases involving religious displays. “In the re-

ligious display context,” she stated, “a plaintiff has standing

when he or she encounters the display with some level of fre

quency or regularity during the course of the plaintiff’s typical

routine... . Here, Plaintiffs read the resolution, But apart from

that initial contact, Plaintiffs allege no facts to suggest that they

ever would have reason to read the resolution again, as part of

their regular routine or otherwise (except to facilitate this

litigation).” Pet. App. 75a.

12

Regarding context, Judge Silverman wrote that the

objective observer, who under Supreme Court prece-

dent is “presumed to be familiar with the history of

the government’s actions and competent to learn

what history has to show,” would consider the resolu-

tion in light of San Francisco’s persistent efforts to

achieve lesbian and gay equality, and in light of the

fact that the Board enacted the measure in direct

response to the Vatican’s attempt to influence policy

within San Francisco. /d. (quoting McCreary County

v. ACLU of Kentucky, 545 U.S. 844, 866 (2005)). Re-

garding Lemon’s entanglement prong, Judge Silver-

man reasoned that the resolution “was an isolated,

nonbinding expression of the Board of Supervisors’

opinion on a secular matter, which the plaintiffs have

not alleged even potentially interfered with the inner

workings of the Catholic Church.” Pet. App. 36a. The

opinion concluded:

We would have a different case on our hands

had the defendants called upon Cardinal

Levada to recant his views on transubstanti-

ation, or had urged Orthodox Jews to aban-

don the laws of the kashrut, or Mormons

their taboo of alcohol. Those matters of reli-

gious dogma are not within the secular arena

in the 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, re-

ligious and nonreligious alike. I would not

construe the First Amendment to prohibit

elected officials from speaking out, in their

official capacities, on matters of such clearly

13

civil import, even if their speech is insolent,

stupid, or worse. A church has every right to

take a firm moral position on secular issues,

but it has no right to prevent public officials

from criticizing its position on those secular

issues — especially when one of its clergy

fires the first salvo.

Pet. App. 37a-38a.

Writing for the three judges who concluded

petitioners had standing and stated a claim on the

merits, Judge Kleinfeld opined that the resolution

constituted unconstitutional “governmental condem-

nation of Catholic doctrine.” Pet. App. 22a. The reso-

lution violated Lemon’s “purpose” prong, in Judge

Kleinfeld’s view, because its text focused on the

activities and statements of the Catholic Church:

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 re-

ligious faith. But the title paragraph, the

other five “whereas” clauses, and the “re-

solved” language are all about the Catholic

Church, not same-sex couples.

Pet. App. 23a. Nor did the resolution’s context, Judge

Kleinfeld reasoned, turn the resolution’s anti-religious

purpose into a secular one, because the “reasonable

14

observer” under Lemon should not be assumed famil-

iar with the history of San Francisco’s efforts to

promote lesbian and gay cquality. Jd. at 24a-25a.

Regarding Lemon’s “effects” prong, Judge

Kleinfeld emphasized the language of the resolution,

concluding that the reasonable observer would con-

clude it conveys a “message of disapproval” of the

Catholic religion:

The “message” in the resolution, unlike, say,

the message that might be inferred from

some symbolic display, is explicit: a Catholic

doctrine duly communicated by the part of

the Catholic church in charge of clarifying

doctrine is “hateful,” “defamatory,” “insult-

ing,” “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” its religious directive,

and the local archbishop should defy his su-

perior’s directive.

Pet. App. 27a.

Judge Kleinfeld also concluded the resolution ran

afoul of Lemon’s entanglement prong, reasoning that

San Francisco had entangled itself in matters of

Church hierarchy in the same way that a Board

resolution urging a district court to defy a Ninth

Circuit ruling would entangle it in the hierarchy of

the federal judiciary. Jd. at 28a.

Judge Kleinfeld also wrote for the six judges who

concluded petitioners had standing to challenge the

resolution. This portion of Judge Kleinfeld’s opinion

found that the individual petitioners had standing

because they alleged that their own legislature sin-

gled them out in an expression of hostility towards

their religion, that they came into contact with the

allegedly anti-religious speech, and that this chilled

their access to government and forced them to curtail

their activities to lessen their contact with their

government. Pet. App. 18a. In this regard, Judge

Kleinfeld reasoned, the individual petitioners alleged

an injury that was concrete and specific enough to

distinguish them from other members of the public

who might merely find the resolution offensive and

believe it to be unconstitutional. Jd. at 9a. The opin-

ion further concluded that Catholic League had

standing because, once its San Francisco members

were found to have standing, it easily satisfied the

test for associational standing under Warth v. Seldin,

422 U.S. 490 (1975).

ARGUMENT

I. THE SUBSTANTIVE ESTABLISHMENT

CLAUSE QUESTION PRESENTED BY

THIS CASE IS NOT WORTHY OF CERTI-

ORARI.

The substantive constitutional question pre-

sented by this case — whether the Board’s resolution

violated the Establishment Clause — is not worthy of

16

certiorari for at least four reasons: (1) the ruling

below created no substantive Establishment Clause

law, because only three of the eleven members of the

en banc court opined that the resolution was constitu-

tional; (2) the three-judge opinion does not, in any

event, conflict with any other Establishment Clause

decision; (3) the legal question presented by this case

is unlikely to recur, and its unusual facts make it the

worst possible vehicle for the creation of a new Estab-

lishment Clause test; and (4) in any event, Judge

Silverman and his two colleagues were right to con-

clude that a local legislature may speak out, even

impolitely, when a religious actor attempts to influ-

ence secular policy outcomes within its jurisdiction.

A. The Ruling Below Created No New Es-

tablishment Clause Law.

Contrary to petitioners’ dire predictions about the

impact of the Ninth Circuit’s “decision,” the ruling

below created no substantive Establishment Clause

law. Because only three of the eleven members of the

en banc court concluded the resolution was constitu-

tional, their opinion has no binding effect, even

within the Ninth Circuit. See, e.g., Nevius v. Sumner,

105 F.8d 453, 460 & n.6 (9th Cir. 1996) (plurality

opinion of en banc court not binding precedent within

the Ninth Circuit). In fact, Judge Silverman’s opinion,

with which petitioners take issue, has no greater

precedential value than Judge Kleinfeld’s opinion,

with which petitioners agree. And because neither

opinion is binding, substantive Establishment Clause

17

law is exactly the same — in the Ninth Circuit and

elsewhere — as if petitioners had never filed their

lawsuit.

This alone renders the case unworthy of certiora-

ri. This Court’s Rule 10 emphasizes at every turn that

certiorari jurisdiction most commonly lies when a

lower “court” has “decided” an important federal

question. S.Ct. Rule 10(a), 10(b) & 10(c). The Ninth

Circuit did not “decide” the question petitioners claim

is so important. The only actual decision by the Ninth

Circuit was that the district court did not err in

dismissing the complaint. To be sure, this Court

reviews judgments rather than opinions, Mississippi

University for Women v. Hogan, 458 U.S. 718, 723 &

n.7 (1982), but the judgment should involve a “deci-

sion” on an important question of law. While this case

may make for interesting discussion, it involves no

substantive Establishment Clause decision at all,

much less an important one.

B. The Three-Judge Opinion Does Not Con-

flict With Any Other Court Decision.

Even if Judge Silverman’s opinion had been

issued by a six-judge majority, it would have created

no conflict with a decision of any other court. To

establish such a conflict, petitioners must, at a mini-

mum, identify a case in which a plaintiff alleged his

government condemned his religion, and the court

held that the government’s speech violated the Estab-

lishment Clause. Petitioners do not identify such a

18

case, the opinions below did not identify one, and the

City is aware of none.

Petitioners are thus relegated to arguing that

Judge Silverman’s opinion conflicts with cases arising

from vastly different factual scenarios. Although they

cite virtually every_religion case on the books, they

single out four: 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). Pet. 19.

The first of these cases, Lukumi, was a Free

Exercise case, not an Establishment Clause case. Far

from involving nonbinding government speech, it

involved the outright criminalization of animal

slaughter practices, through an ordinance that was

gerrymandered to ensure only members of the San-

teria church could be prosecuted under it. 508 U.S. at

535-36. The second case, Santa Fe, involved a claim

that a school policy allowing prayer at high school

football games violated the Establishment Clause

530 U.S. at 310-11. The third, Edwards, again did not

involve nonbinding government speech, but rather a

state statute that this Court held was designed “to

restructure the science curriculum to conform with a

particular religious viewpoint.” 482 U.S. at 593. And

the fourth, Epperson, similarly involved a statute

that prohibited teachers, on pain of criminal penalty,

from discussing the theory of evolution. 393 U.S. at

107. The Court’s conclusions that the government

violated the First Amendment on the facts of these

19

cases obviously do not conflict with an opinion that a

local legislature did not violate the Establishment

Clause when it passed a nonbinding resolution criti-

cizing a religious leader for attempting to influence

policy within that jurisdiction.

C. The Facts Of This Case Are Highly

Unusual And Present No Important Or

Recurring Question That Requires

Resolution.

It is unsurprising that Judge Silverman’s opinion

conflicts with no other court decision, because the

facts of this case are highly unusual. It is not often

that all of the following events take place: (1) a reli-

gious leader attempts to influence policy in a specific

jurisdiction; (2) he succeeds in doing so; (3) govern-

ment officials in that jurisdiction speak out against

the religious leader’s actions; and (4) followers of the

religious leader believe the government speech vio-

lates their rights and sue for a judicial declaration to

that effect. This case simply does not involve a recur-

ring or important legal question, much less a vexing

or widespread problem in society, that would justify a

grant of certiorari even absent a conflict among the

courts. And because the facts are so unusual, this

case could not provide a worse vehicle for reconsider-

ation, as petitioners urge, of the entirety of this

Court’s Establishment Clause jurisprudence.

The overwhelming majority of Establishment

Clause cases involve allegations by a plaintiff that

20

the government has favored religion — typically

through a religious display, an invocation to which

the plaintiff was subjected, or the expenditure of tax

dollars in furtherance of some policy. See, e.g., Van

Orden v. Perry, 545 U.S. 677, 689-91 (2005) (discuss-

ing primarily cases involving religious displays);

Santa Fe, 530 U.S. at 310-13 (discussing primarily

challenges to invocations at public gatherings);

Zelman v. Simmons-Harris, 536 U.S. 639, 649-52

(2002) (discussing primarily cases involving expendi-

ture of funds). When, in contrast, the government is

alleged to have disfavored religion, the claim is

almost invariably brought under the Free Exercise

Clause, because the government has imposed an

actual restriction on religious speech or conduct. See,

e.g., Lukumi, 508 U.S. at 531 (reciting cases). In this

case, a government entity has engaged in nothing

more than speech, and the speech is alleged to dis-

favor religion. That type of First Amendment claim is

almost nonexistent.°

Although instances in which pure government

speech is alleged to disfavor religion are rare enough,

that still does not fully capture this case’s outlier

* The only three such cases of which the City is aware are

O’Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005),

Am. Family Ass’n v. City and County of San Francisco, 277 F.3d

1114 (9th Cir. 2002), and Okwedy v. Molinari, 150 F.Supp.2d 508

(E.D.N.Y. 2001) (Establishment Clause holding affirmed by

Okwedy v. Molinari, 69 Fed.Appx. 482, 484-85 (2d Cir. 2003)). In

all these cases, the courts rejected the argument that the

government speech violated the Establishment Clause.

Z]

status in the Establishment Clause universe. It is one

thing for the government, uninvited, to engage in

speech that might be interpreted as hostile to reli-

gion. See, e.g., O'Connor, 416 F.3d at 1219 (display of

sculpture invoking allegations of priest abuse). It is

quite another thing where, as here, a religious leader

reaches out to a jurisdiction in an attempt to influ-

ence policy, uses controversial language to do so,

actually succeeds in changing the policy, and the

legislative body of that jurisdiction responds with

speech of its own but takes no regulatory action. That

kind of case has never come up before. It may never

come up again. It is a singularly poor vehicle to

revisit this Court’s entire Establishment Clause

jurisprudence.”

D. Judge Silverman’s Three-Judge Opin-

ion Correctly Applied The Law To The

Unusual Facts Of This Case.

Even though Judge Silverman’s opinion did not

garner a majority, the result reached by the Ninth

Circuit (affirmance of dismissal of the complaint) was

‘ Nor, in any event, is petitioners’ proposed replacement for

the Lemon test reasonable — it appears heavily to favor the

rights of the Judeo-Christian majority over religious minorities,

which directly contravenes the Establishment Clause’s central

goal of preventing the government from prescribing what is

orthodox. For example, petitioners’ proposed test appears to

demand that courts apply rational basis review to a legislative

statement that “one God exists,” but strict scrutiny to a legisla-

tive statement that “more than one God exists.” Pet. 18-19.

correct for the reasons he stated. The Establishment

Clause does not permit courts to assess government

conduct from the perspective of someone who is

ignorant of the context in which it occurs. The Clause

presumes an observer “familiar with the history of

the government's actions and competent to learn

what history has to show.” McCreary County v. ACLU

of Kentucky, 545 U.S. 844, 866 (2005). An observer

familiar with San Francisco’s efforts to promote

lesbian and gay equality — especially the Board’s prior

resolutions — would know the Board did not care

whether the discrimination was being done by a

religious or secular leader. The observer would un

derstand that the Board would have responded in

exactly the same way had a powerful international

secular organization that does charitable work (say,

the Bill and Melinda Gates Foundation) announced it

would only support programs in San Francisco that

discriminate on the basis of sexual orientation. More-

over, an observer familiar with the timing of the

resolution would understand that the Board spoke

out, not in response to a statement of doctrine put out

by the Congregation of the Doctrine of the Faith in

2003, but in response to the specific and controversial

attempt in 2006 to influence outcomes on a secu-

lar issue of great importance to the people of San

Francisco. Finally, the observer would know that the

resolution was accompanied by no regulation, and

that the City made no effort to disseminate the

resolution beyond its normal placement with all other

resolutions on the City’s website.

Judge Kleinfeld’s competing three-judge opinion

assumed government officials have no right to re-

spond to such conduct by a religious leader. It argued

that the Establishment Clause limits legislative

bodies to general statements of policy — that govern-

ment officials may not specifically respond to the

actions of religious groups on matters of civic concern.

Pet. App. 23a (arguing that every aspect of the resolu-

tion violated the constitution other than the sentence,

“[s]Jame-sex couples are just as qualified to be parents

as heterosexual couples.”). However, if a religious

group dedicates itself to influencing policy on a secu

lar issue, it must be presumed to have the fortitude to

withstand the criticism that inevitably comes from

being an active participant in this arena. If, for

example, a religious group launched a campaign to

convince judges to vote against the death penalty, it

could not be heard to complain of criticism by propo-

nents of the death penalty within the government. If

a religious group called for terrorist acts within the

United States, surely its members could not challenge

the constitutionality of a harsh rebuke from the

President in a State of the Union address. That a

person’s policy objectives in the secular arena happen

to be driven by religious belief is not a reason to treat

him differently. Cf. McGowan v. Maryland, 366 U.S.

420, 442 (1961) (“the Establishment Clause does not

ban federal or state regulation of conduct whose

reason or effect merely happens to coincide or har-

monize with the tenets of some or all religions. In

many instances, the Congress or state legislatures

conclude that the general welfare of society, wholly

apart from any religious considerations, demands

such regulation”); Bowen v. Kendrick, 487 U.S. 589,

612-13 (1988) (“On an issue as sensitive and im

portant as teenage sexuality, it is not surprising that

the Government’s secular concerns would either

coincide or conflict with those of religious institutions

But the possibility or even the likelihood that some of

the religious institutions who receive Adolescent

Family Life Act funding will agree with the message

that Congress intended to deliver . is insufficient to

warrant a finding that the statute on its face has the

primary effect of advancing religion.’

Judge Kleinfeld’s approach also gives short shrift

to the notion that legislators have their own right to

speak out on matters affecting the people they repre

sent. “Government officials are expected as a part of

the democratic process to represent and to espouse

the views of a majority of their constituents. With

countless advocates outside of the government seek

ing to influence its policy, it would be ironic if those

charged with making governmental decisions were

not free to speak for themselves in the process.” Keller

v. State Bar of California, 496 U.S. 1, 12 (1990); see

also Bond v. Floyd, 385 U.S. 116, 135-36 (1966) (“The

manifest function of the First Amendment in a repre

sentative government requires that legislators be

given the widest latitude to express their views ou

issues of policy.”). To be sure, government speech 1

limited at some point by the Establishment Clause,

but in determining where that limit lies, Judge

Silverman’s opinion wa: right to be solicitous of

legislators ncvere | il peaking Ol matt

ecular concern, and Judge Kleinfeld pli

wrong to brush aside those interest

In um, the only workable approaci

highly unusual Establishment Clause question ts that

taken by Judge Silverman, whose opinion corres

applied the Lemon test to conclude the resolution

primary purpose and eltfect was nol LO denour

religion, but to re pond to a controversial and

essful attempt to affect the lives of San I

nthe secular are

ll. THE NINTH CIRCUIT’S DECISION ON

STANDING IS NOT WORTHY OF CERTI

ORARI.

Petitioner orevaliled on the

ing below and accordingly do not eek certiorari

if The Coity argued below, and CONLINUeES LO evi r'e

that petitioner had tanding tor Landing muy

post It MuUSt DN a umed, a mncorrecth' illeged

Although petitioners and Judge Kleinfeld do not prop

th one could imagine an argument that although religiou

actors in the policy arena should not enjoy complete immunit

from vovernmental criticism, there should be some limit on fo

officials may address them. This approach, however, would cd

litthe more than thrust judges into the role of “Miss Manner

policing the etiquette but not the content of public officials’ crit

cisms of people who advance policy goals in the name of the

religion. Worse, the result would be the emeryence, through ¢

law, of a confusing code of speech that of ials wo Ll be forces

consult before speal

petitioners, that the resolution was a denunciation of

the Catholic religion. See, e.g., In re Navy Chaplaincy,

534 F.3d 756, 760 (D.C. Cir. 2008). A Catholic resident

of the City must have standing to challenge an official

resolution denouncing his religion, just as a non-

Catholic resident must have standing to challenge a

resolution proclaiming Catholicism the official reli-

gion of San Francisco. A contrary conclusion would

insulate government officials from suit even when

they violate the Establishment Clause at its very

core, by “establishing” an official religion.

In any event, as acknowledged even by Judge

Graber’s opinion, the conclusion that petitioners had

standing created no conflict with the decision of

another court. Rather, the case presented a standing

question that defied categorization, could be com-

pared only to cases involving noticeably different

facts, and may never again come before the federal

judiciary.

Judge Graber opined that the facts of this case

were close enough to those of Valley Forge Christian

Coll. v. Americans United for Separation of Church &

State, Inc., 454 U.S. 464, 475 (1982), to warrant a

conclusion that jurisdiction was lacking. But Valley

Forge involved an advocacy organization’s challenge

to a transfer of property to a religious organization.

This Court held that the members of the organization

were nothing more than “concerned bystanders” who

“failled] to identify any personal injury suffered by

them as a consequence of the alleged constitutional

error, other than the psychological consequence

presumably produced by observation of conduct with

which one disagrees.” Jd. at 473, 485. Judge Graber’s

discussion of the differences between this case and

Valley Forge was more convincing than her discussion

of their similarities, and at a minimum it demon-

strates there is no conflict with Valley Forge:

In some ways, Plaintiffs’ allegations

evince a much stronger connection to the

challenged governmental action.... 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... .

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 di-

rect attack on one’s own religion, as distinct

from a more general offense that the gov-

ernment is condoning or conveying religious

messages with which one generally dis-

agrees or to which one does not adhere. |

acknowledge that Plaintiffs’ residency and

their perception of the government action as

attacking their specific religion distinguish

this case in significant ways from the Su-

preme Court’s Valley Forge decision.

Pet. App. 67a. In sum, the connection between the

plaintiffs and the government action in this case was

more direct, and the alleged injury was more tangi-

ble, than in Valley Forge.°

There is also no conflict between this case and

the religious display cases discussed by Judge Graber.

As she recognized, those cases, which tend to require

that a plaintiff allege “frequent and regular” contact

with a display to achieve standing, are only compar-

able by analogy. Pet. App. 74a (quoting, among oth-

ers, Vasquez v. Los Angeles County, 487 F.3d 1246,

1252 (9th Cir. 2007)). And the analogy is a loose one,

because while those offended by religious displays

may be made to feel like outsiders, a plaintiff whose

religion is officially denounced by his legislature is

the direct target of religious discrimination. Although

his actual contact with the resolution is more attenu-

ated, the alleged injury is heightened, and far more

specific to the plaintiff.

* In the same way, there is no conflict between the Ninth

Circuit’s jurisdictional conclusion below and the decisions Judge

Graber cited as similar to Valley Forge, namely, Newdow v.

Lefevre, 598 F.3d 638, 643 (9th Cir. 2010), Newdow v. Rio Linda

Union School Dist., 597 F.3d 1007, 1016-17 (9th Cir. 2010), In re

Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008), and Flora

v. White, 692 F.2d 53, 54 (8th Cir. 1982). In those cases, the

courts held the plaintiffs lacked standing because they alleged

an injury no different from that suffered by any other member of

the public who objected to the government policy at issue. See,

e.g., Navy Chaplaincy, 534 F.3d at 764 (“under plaintiffs’ stand-

ing theory any recipient of the Navy’s ‘message’ in this case,

including the judges on this panel, would have standing to bring

suit challenging the allegedly discriminatory Chaplain Corps.”).

7

Finally, the mplaint alleged that petit

also had standing as taxpayers who objected to th

use of government resources to pass the resolution

However, petitioners never presented this argumen

to the Ninth Circuit, and no judge below opined that

petitioners had taxpayer standing. Judge Kleinfeld’:

opinion did not address the question, and Judgi

Graber’s opinion briefly explained why taxpaye1

standing was lacking. Pet. App. 82a. Accordingly, this

Court’s pending decision in Arizona Christian Schoo

Tuition Org. v. Winn, No. 09-987 will have no bearin

on this cass

CONCLUSION

ihe Court nould deny the

certiorari

¥ } . . D> c

Dated: Marc! Respectfully subm

DENNIS J. HERRE!

City Attorney

THERESE M. STEWAR

Chief Deputy City Att

WAYNE SNODGRASS

VINCE CHHABRIA

Counsel of Recor

CHRISTINE VAN AKEN

Deputy City Attor