# Opposition Brief — Catholic League for Religious & Civil Rights v. City & County of San Francisco > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0938%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2011 - **Citation:** 563 U.S. 974 ## Text aa (Supionn » Cour, LS | No. 10-1034 | , atid Sa gD eee — sarees | — Of 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 the nonprecedential opinion of three judges from = an eleven-member en banc panel of the Ninth Circuit that the San Francisco Board of Supervisors did not violate the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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0938%3A2. Public record. Not legal advice.