Religious v. City

• Citation: 624 F.3d 1043
• Decision Date: 22 October 2010
• Docket Number: No. 06-17328.,06-17328.
• Parties: CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS; Richard Sonnenshein; Valerie Meehan, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; Aaron Peskin; Tom Ammiano, in his official capacity as a Supervisor, Board of Supervisors, City and County of San Francisco, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 1043

CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS; Richard Sonnenshein; Valerie Meehan, Plaintiffs-Appellants,

v.CITY AND COUNTY OF SAN FRANCISCO; Aaron Peskin; Tom Ammiano, in his official capacity as a Supervisor, Board of Supervisors, City and County of San Francisco, Defendants-Appellees.

No. 06-17328.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 16, 2009.

Filed Oct. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Robert Joseph Muise, Thomas More Law Center, Ann Arbor, MI, for the appellants.

Vince Chhabria, Deputy City Attorney, San Francisco, CA, for the appellees.

Michael Newdow, Sacramento, CA, for amicus curiae Michael Newdow.

Bridget Jeanne Wilson, Rosenstein, Wilson & Dean, P.L.C., San Diego, CA, for amicus curiae DignityUSA.

Erwin Chemerinsky, University of California, Irvine, CA, for amicus curiae Law Professors Alan Brownstein, Jordan Budd, and Erwin Chemerinsky.

David Blair-Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, CA, for amicus curiae ACLU of San Diego & Imperial Counties.

Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, Senior District Judge, Presiding. D.C. No. CV-06-02351-MHP.

Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET McKEOWN, RICHARD R. CLIFTON, JAY S. BYBEE and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge KLEINFELD; Concurrence by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge GRABER.

OPINION

KLEINFELD, Circuit Judge:

A majority of the court has concluded that the plaintiffs have standing. A separate majority, for differing reasons, affirms the district court's dismissal of the plaintiffs' claim.

Parts I and II of this opinion are joined by Judges THOMAS, SILVERMAN, CLIFTON, BYBEE, and IKUTA. Part III of this opinion, addressing the merits of the plaintiffs' claim, is a dissent, joined by Judges BYBEE and IKUTA. Five of us, including Chief Judge KOZINSKI and Judges RYMER, HAWKINS, and McKEOWN, conclude that the plaintiffs have no standing, as set forth in Judge GRABER's opinion. Three of us, including Judges THOMAS and CLIFTON, concur in the judgment, concluding that although the plaintiffs do have standing, their claim fails on the merits, as set forth in Judge SILVERMAN's opinion.

I. Facts ¹

We address whether Catholics and a Catholic 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 III established the Congregation for the Doctrine of the Faith a half millennium ago. ² 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 Cardinal's instructions. Here is Resolution 168-06 in full:

Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts 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 in need; and

WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic agencies should not place children for adoption in homosexual households,” and “Allowing children to be adopted by persons 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 discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and

WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and

WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it

RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households. ³

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 granted, and we initially affirmed. ⁴ We then voted to rehear the case en banc, and now affirm the district court's dismissal on differing grounds.

II. Standing

The complaint alleges that plaintiffs are a Catholic 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 the community who have had contact with the resolution and have suffered spiritual harm as a result.” Were the result otherwise, the municipality concedes, a resolution declaring Catholicism to be the official religion of the municipality would be effectively unchallengeable. The municipality also concedes that the Catholic League has “associational standing.”

“At bottom, ‘the gist of the question of standing’ is whether petitioners have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ” ⁵ 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 doctrine entitles them to litigate whether an anti-Catholic resolution violates the Establishment Clause. Standing, or the lack of it, may be intertwined with whether the complaint states a claim upon which relief can be granted, but it is not the same thing. ⁶ 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 their government's preferment of other religious views.

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.” ⁷ 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.

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 be redressed by a favorable decision by the court. ⁸ “The...