SF Lawsuit: An Opinion, a Precedent, and a Contradiction

Eugene Volokh has a post about this suit, likely prompted by me bringing it up on his religion law listserv this morning, and he argues that it probably isn't unconstitutional but still troublesome. First amendment law is his specialty, so he's probably got a pretty firm grasp on it. I'm gonna take a fairly large quote from his post, so I'll begin below the fold:

The San Francisco city government, it seems to me, is quite entitled to express its views on gay rights questions, and to condemn groups that, in its view, express "hateful" ideas. It's entitled to do this even when those groups are religious groups -- whether the Catholic Church, some Islamic denomination, the Church of Scientology, or any other religious group.

It's possible that expressing views on a religious group's purely theological claims (as opposed to claims related to worldly conduct that affects other people) might violate the Establishment Clause. There is even some language in the Court's opinions, which condemn "endorsement or disapproval of religion," that suggests that any condemnation of a religious organization by name would be unconstitutional. But it seems to me that the right rule is that government officials must be able to comment on religious groups when their actions touch on secular matters, for instance arguing that terrorism is antithetical to the proper understanding of Islam, or that the Catholic Church's views on adoption by homosexual couples are wrong.

I also was pointed to an interesting precedent on the matter (and thanks to Christopher Patti for doing so), the case of American Family Assoc., Inc. v. City and County of San Francisco, a 9th circuit ruling from 2002. The situation was almost identical in all of the relevant aspects. In response to an ad campaign by religious groups urging homosexuals to convert to Christianity and stop being gay, the SF Board of Supervisors passed two resolutions. The first one was about the murder of a gay man in Alabama named Billy Jack Gaither:

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 lesbi-ans, 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 was specifically targeted at the ad campaign and even named 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 advertis-ing campaigns aimed at 'converting' homosexuals."

So while it did not attack a specific church, it did attack specific individuals and condemn their religious beliefs. Fairly similar to our current case. The same constitutional violations were alleged and the defendants (the city of SF) filed a motion to dismiss. The trial court granted the motion to dismiss, but did say that the establishment clause claim could be amended and the case reheard. Plaintiffs did not file an amended complaint, the case was dismissed and an appeal was filed. The appeals court applied a de novo review (which means they re-examined the entire issue without regard to the lower court's findings).

The court applied the Lemon test, but did note that this was somewhat problematic because most establishment clause violations "challenge instances in which the government has done something that favors religion or a particular religious group" leaving them with "little guidance concerning what constitutes a primary effect of inhibiting religion." So it appears that the fact that this was a non-binding resolution that didn't actually do anything did concern them in terms of applying this test. They did not, however, consider whether it might violate O'Connor's endorsement test, presumably because that test has never been applied by a majority of the Supreme Court.

On the question of whether the specific condemnation of a religious group's views would constitute an EC violation, the court relied on the "primary effect" distinction in the Lemon test:

Although the resolution contains a provision calling "for the Religious Right to take accountability for the impact of their long-standing rhetoric denouncing gays and lesbians," this provision appears to be more of an afterthought and any disparagement of the Religious Right is not the primary effect of the resolution. Read as a whole, the primary effect is a denouncement of hate crimes and a call for action by the Alabama legislature. A reasonable, informed and objective observer would not view the primary effect of this resolution as inhibition of religion.

The other resolution and the letter to the Plaintiffs present a closer question. These documents are directly aimed at the Plaintiffs and both documents contain statements from which it may be inferred that the Defen-dants are hostile towards the religious view that homo-sexuality is sinful or immoral. Nonetheless, we believe the district court properly concluded that this was not the principal effect of the Defendants' actions. The docu-ments, read in context as a whole, are primarily geared toward promoting equality for gays and discouraging violence against them. A number of the Defendants' statements are merely rebuttals of medical and psychological evidence cited by the Plaintiffs in their advertisement and not criticisms of the Plaintiffs' under-lying religious beliefs. Certainly, the letter and resolution may contain over-generalizations about the Religious Right, at times misconstrue the Plaintiffs' message, and may be based on a tenuous perceived connection be-tween the Plaintiffs' advertisements and the increase in violence against gays and lesbians. This does not, however, make religious hostility the primary effect of the Defendants' actions.

Finally, Jon Rowe makes an important point in a comment at Positive Liberty:

This certainly doesn't violate the conception of the EC held by some originalists, where the Establishment Clause is a "federalism" only provision. Under that conception, this is a perfectly valid integration of Church & State.

Excellent point. This is clearly a contradiction for most on the religious right who would support such a suit. There are two primary arguments offered by them to negate the Supreme Court's post-Everson establishment clause jurisprudence:

1. The establishment clause doesn't apply to the states at all, it was intended only to protect state establishments of religion from Federal interference; or,

2. The establishment clause was only intended to prevent de jure establishments of religion while allowing non-binding and non-coercive government proclamations about religion.

By either standard, the argument that they're making is disingenuous - they don't really believe that this is an establishment clause violation, they're merely trying to take advantage of rulings that they have criticized not only as flawed and incorrect but as dangerous and even "communist".

Still, I agree with Volokh that the resolution, even if not unconstitutional, is at least problematic. The rhetoric of the resolution really is reminiscent of the kind of vicious anti-Catholic slanders so common in our past. The claim that Catholics are controlled by a "foreign power" was for far too long aimed at Catholic politicians. From the anti-Catholicism of most of our founding fathers (and virtually all of their generation) to the Blaine amendments, this is a part of our past that we certainly shouldn't be dredging up, least of all by a group posing as the voices of tolerance.

Frankly, there are few legislative bodies more ridiculous than the SF Board of Supervisors. They spend an enormous chunk of their time issuing non-binding resolutions condemning one group or another, or urging someone in another state to vote for a bill. It's all pointless posturing, designed only to make it look as though they're doing something other than striking poses for the media. This is the same group that refused to allow a retired battleship to be docked there and used as a museum so that they could protest the war in Iraq. They are given to many pointless symbolic gestures like that.