AM. Family Assoc. v. City & County of San Francisco

Decision Date16 January 2002
Citation277 F.3d 1114
CourtU.S. Court of Appeals — Ninth Circuit

Brian Fahling and Stephen M. Crampton, Afa Center for Law & Policy, Tupelo, Mississippi, and Peter Hagberg, Oakland, California, for the appellants.

Louise H. Renne, Randy Riddle, Ellen Forman, Teresa L. Stricker, Rafal Ofierski, Deputy City Attorneys, San Francisco, California, for appellees City and County of San Francisco and Leslie R. Katz.

Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding D.C. No. CV-99-04469-SBA

Before: John T. Noonan, Michael Daly Hawkins, and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Hawkins; Dissent by Judge Noonan


American Family Association, Inc., Donald E. Wildmon, Kerusso Ministries and Family Research Council (collectively, "Plaintiffs") appeal the district court's dismissal of their Section 1983 action for failure to state a claim. In their complaint, Plaintiffs alleged that the City and County of San Francisco violated the First Amendment and the California Constitution by formally disapproving of an advertising campaign that espoused the view that homosexuality is a sin and that homosexuals could change their sexual orientation. Because the defendants' actions did not violate the First Amendment, we affirm.


Plaintiffs joined other religious groups in sponsoring an advertising campaign called "Truth in Love." In connection with the campaign, a full page advertisement was carried in the San Francisco Chronicle in 1998. The ad proclaimed that Christians love homosexuals, but that "God abhors any form of sexual sin," whether it is homosexuality, premarital sex or adultery. The ad recognized that a strong same-sex urge drives homosexuality, but stated that everyone "makes a choice in yielding to temptation." It claimed that many have walked out of homosexuality into sexual celibacy or even marriage through the help of Jesus Christ, and depicted a recent gathering of a nationwide ex-gay ministry organization. The ad stated:

For years, Christians have taken a stand in the public square against aggressive homosexual activism. We've paid a heavy price, with sound-bite labels like "bigot" and "homophobe." But all along we've had a hand extended, something largely unreported in the media . . . an open hand that offers healing for homosexuals, not harassment. We want reason in this debate, not rhetoric. And we want to share the hope we have in Christ, for those who feel acceptance of homosexuality is their only hope.

The ad also indicated that the Christian groups wanted to help people to reject self-destructive behavior. It quoted statistics that homosexual behavior "accounts for a disproportionate number of sexually transmitted diseases, " that "65% of all reported AIDS cases among males since 1981 have been men engaged in homosexual behavior" and that"homosexual youth are twenty-three times more likely to contract STD's than heterosexuals." The ad also claimed that studies revealed a high degree of destructive behavior among homosexuals, including "alcohol, drug abuse and emotional and physical violence."

On October 19, 1998, the San Francisco Board of Supervisors sent a letter to Plaintiffs,1 the body of which read:

Supervisor Leslie Katz denounces your hateful rhetoric against gays, lesbians and transgendered people.

What happened to Matthew Shepard is in part due to the message being espoused by your groups that gays and lesbians are not worthy of the most basic equal rights and treatment.

It is not an exaggeration to say that there is a direct correlation between these acts of discrimination, such as when gays and lesbians are called sinful and when major religious organizations say they can change if they tried, and the horrible crimes committed against gays and lesbians.

The City and County of San Francisco also adopted two resolutions. The first, Resolution No. 234-99, condemned the murder of Billy Jack Gaither in Alabama following a reported unwanted gay sexual advance, and urged Alabama lawmakers to extend their hate crimes legislation to include offenses related to sexual orientation. The final paragraph of the Resolution "calls for the Religious Right to take accountability for the impact of their long-standing rhetoric denouncing gays and lesbians, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as those committed against Mr. Gaither."

The second resolution, No. 873-98, was specifically directed at "anti-gay" television advertisements. It recited that a coalition had introduced a nationwide television advertisement campaign to encourage gays and lesbians to change their sexual orientation, and listed one of the Plaintiffs by name. The resolution asserted that the organizations "promote an agenda which denies basic equal rights for gays and lesbians and routinely state their opposition to toleration of gay and lesbian citizens" and stated that a "prominent San Francisco newspaper" chose to accept and publish a printed advertisement campaign. The resolution contended that "the vast majority of medical, psychological and sociological evidence supports the conclusion that sexual orientation can not be changed" and that ads insinuating as much are"erroneous and full of lies." The resolution also stated that ads suggesting gays or lesbians are "immoral and undesirable create an atmosphere which validates oppression of gays and lesbians" and encourages maltreatment of them. The Resolution claimed a "marked increase in anti-gay violence" that coincided with "defamatory and erroneous campaigns" against gays and lesbians. It then urged "local television stations not to broadcast advertising campaigns aimed at `converting' homosexuals."

Following receipt of the letter and passage of the resolutions, Plaintiffs brought a Section 1983 action in district court against the City and County of San Francisco and Leslie Katz in her official capacity (collectively, the "Defendants"), alleging violations of the First and Fourteenth Amendments of the United States Constitution as well as certain provisions of the California Constitution. Plaintiffs alleged three causes of action: (1) a violation of the Establishment Clause, alleging San Francisco's actions disapproved of a particular religion; (2) a violation of the Free Exercise Clause, violating their right to free exercise of religion; and (3) a "hybrid" cause of action, violating their rights to free exercise of religion and chilling the exercise of their free speech rights. The Plaintiffs sought an injunction prohibiting the Defendants from"making any further official pronouncements or declarations against Plaintiffs or any other groups or individuals whose religious beliefs include the belief that homosexuality is sinful and that homosexuals can change their homosexual practices," nominal damages and litigation costs.

Defendants moved to dismiss the Plaintiffs' claims under the federal and California Constitutions under Fed.R.Civ. P. 12(b)(6). The district court dismissed most of Plaintiffs' claims without leave to amend, but dismissed the Establishment Clause claim with leave to amend. Plaintiffs notified the court that they did not intend to file an amended complaint, and the court dismissed the entire action with prejudice. This appeal followed.


This court reviews de novo a district court's dismissal for failure to state a claim pursuant to Rule 12(b)(6). Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.), cert. denied, 531 U.S. 929 (2000).

I. Establishment Clause
A. The Lemon Test

The Establishment Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion. " U.S. Const. amend. I. This clause applies not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility towards religion. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) ("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 religion in general."); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994) ("the Establishment Clause is . . . violated as much by government disapproval of religion as it is by government approval of religion.").

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court established the now widely known " Lemon test" for analyzing government conduct under the Establishment Clause of the First Amendment. To survive the test, the government conduct at issue must (1) have a secular purpose, (2) not have as its principal or primary effect advancing or inhibiting religion and (3) not foster an excessive government entanglement with religion. Id. at 612-13. Although the Lemon test is perhaps most frequently used in c...

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