Thomas More Law Center Sues SF

The real question is: if the TMLC wins, will they ask for attorneys fees from SF taxpayers?

jpf wrote:

The real question is: if the TMLC wins, will they ask for attorneys fees from SF taxpayers?

Of course they will, and they should. That's what the law allows and it's what the law should allow.

Well, if nothing else, the SF Board should be bitch-slapped for their lame aping of the Declaration. This is right up there with "Freedom Fries" :-P

ok, let me rephrase that so the deliciously timely irony isn't lost with a serious answer:

How will the Stop-The-ACLU brigade deal with the cognitive dissonance if the TMLC wins and asks for attorneys fees.

IANAL, but it seems to me that they treaded a fine line by attacking the Vatican as a foreign country trying to impose its views on SF not specifically arguing against the religion generally.

I know very little about establishment clause caselaw, but I always thought that the amendment was interpreted primarily about providing pro-active assistance to a religion (giving them public space, funding, special access, etc.).

How much caselaw is thare backing up the idea that acting negatively toward a specific religion violates the Establishment clause? I realize that you could argue that attacking one religion gives implicit support to all other religions, but I don't konw if this would be considered a violation. Very interesting questions IMHO.

Ed: Let's have some fun. I think I can argue, persuasively, that this Resolution passes any of the Establishment Clause tests quite easily. You think the City may have a problem. As the challenger, you bear the initial burden of proof, but I'll outline the parameters of my defense briefly. (I've got to leave for an appointment that will have me out until mid to late afternoon, but I'll respond when I return).

Under the Lemon test, as modified, the City merely has to articulate a legitimate, non-sham secular purpose. This is easy to do. The City clearly has a secular purpose in seeing that unwanted children are placed in homes with loving, competent parents. Though strict scrutiny is not at issue in Establishment Clause analysis, one could argue that this interest is much more than simply legitimate; it is important or even compelling. It would not take much to come up with other secular purposes.

Is the principal or primary effect of the Resolution to advance or inhibit religion? Far from it. The City couldn't care less about the religious issues. It simply wants to maximize the pool of adoptive parents, consistent with its secular purpose. If we look at effects from an endorsement perspective, the Resolution is still fine. A reasonable observer, one familiar with the context and the City's policy, would not perceive the Resolution as an effort to endorse or disapprove of religion. Despite its rhetoric, the City is not expressing any opinion as to the truth or falsity of the Church's position. It is merely expressing an opinion concerning parental fitness regardless of sexual orientation. The City is certainly allowed to have an opinion, and to express it, on the subject of parental fitness. The City would pass a similar resolution in response to a policy like this espoused by any organization, religious or secular. In short, the City's policy is neutral as between religion and non-religion.

Entanglement should not be an issue here. Indeed, I would argue that the Resolution seeks to disentangle Church and State by disavowing sexual orientation as a per se disqualifier for adoptive parent status.

Coercion is a non-starter. This is merely a resolution expressing the City's policy and urging action. By itself, the Resolution does nothing to coerce, nor does it command action or penalize for failing to follow the City's wishes.

There's my quick and dirty outline -- rather stream of consciousness, I know. On a collateral note, I sort of wonder if perhaps the City wasn't hoping to provoke just such a suit with this Resolution. The last thing the Catholic Church needs is another PR hit on the subject of the Church and children. Not that I expect the Church to back down from its position. Of course, if that is what the City was up to, it sort of gives the game away, doesn't it?

I think Dan's reasoning makes sense. Otherwise, government couldn't express any position on any subject for fear that some religion might advocate it as dogma. As religions have historically (or currently) advocated genocide, execution for apostasy, mistreatment of women, and other things which can be soundly condemned for non-religious reasons, that would place the limits in the wrong place.

I really don't understand how an establishment clause violation could even be alleged here. The Board did not even recommend ending Catholic services or closing Catholic churches; rather they urged a non-profit associated with the Catholic church, namely Catholic Charities, to resume their business as they had been conducting it - in a nondiscriminatory manner. The Board also criticized one Catholic individual, not the whole church, for his actions and statements.

It is true that the city of San Francisco, through its elected representatives, is the most welcoming city for gays and lesbians in America, and the population, as a whole, is clearly at odds with this new dictum from the Vatican. It is also true that gays and lesbians can be wonderful parents and should not be barred from adopting.

At no point, in fact, does the Board even criticize Catholic teaching. The Board objects to the statements "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" Neither statement is a point of Catholic theology.

It is true that the Catholic church (in which I was raised) condemns openly gay people as living immoral lifestyles. But the church also considers those who are divorced and remarried, or who have been married in certain churches (e.g., most Protestant churches, Mormons, Jehovah's Witness) as living immoral lives, because the church does not recognize their marriages (in some cases the church does not recognize the validity of the denomination in which the marriage was sanctified). In fact, living as a heterosexual in a remarriage after divorce, or having been married in a heretical church are considered just as immoral as being openly gay - all three lifestyles violate the Catholic rules against fornication and/or adultery.

But it does not logically follow that those beliefs mean the people living in those lifestyles must be considered to be doing violence to the children they raise, or must be barred from raising children at all. Clearly the church has no problem allowing Catholic charities to place children in the homes of the remarried or the heretical, even though living in the latter type of home greatly increases the chances the child will eventually burn in Hell, according to the Catholic religion, for worshipping in a false church.

In halting the non-discriminatory nature of Catholic Charities' work, the church has crossed the boundaries of religious worship or practice. They have basically stated there are certain Americans who they will not respect - gays and lesbians. Unlike the followers of any other moral/ethical code (and remember, the only real difference between openly gay people and the Catholic church is a matter of moral teaching, namely the morality of same-sex relationships), the church refuses to acknowledge that gays and lesbians can be decent and good people, including being good parents.

Think of it this way, if the church suddenly insisted that Catholic charities stop placing children in the homes of those who have been remarried after divorce (a "lifestyle choice" if there ever was one) after years of having no official policy against it, and went on to say that children placed in such homes were having violence done to them, would a similar resolution from the Board, defending the rights of the divorced, raise any Constitutional issues?

OK, I'm not a lawyer: someone fill me in, please. It seems to me that this is not an Establishment issue, but a Free Exercise issue: how does the Lemon test apply?

If anything, it would seem that if a government-mandated argument casting doubt on a scientific theory for religious reasons in a public institution (a'la ID) can be viewed as establishment of a religion/group of religions, then a government resolution condemning a policy which is a simple and direct result of a church's doctrine, and only applies within that church's organization, can be viewed as an attempt to suppress the practice/teaching of that doctrine, and a violation of the church members' rights under the Free Exercise clause.

Goose/gander.

CPT_Doom wrote:

The Board also criticized one Catholic individual, not the whole church, for his actions and statements.
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The phrase 'Formerly known as the Holy Office of the Inquisition' is not a criticism of an individual, IMHO.

This is certainly a strange case. I'm not a lawyer but I think that the city may have grounds for issueing a statement when a religious group is violating the standards and laws of a community (in this case discrimination over sexual orientation). The other fact is that the city is arguing against the Vatican's dictates through the Vatican's status as a nation/state and not their status as a religion. I'm thinking that this case could go either way.

Dan wrote:

Is the principal or primary effect of the Resolution to advance or inhibit religion? Far from it. The City couldn't care less about the religious issues. It simply wants to maximize the pool of adoptive parents, consistent with its secular purpose. If we look at effects from an endorsement perspective, the Resolution is still fine. A reasonable observer, one familiar with the context and the City's policy, would not perceive the Resolution as an effort to endorse or disapprove of religion. Despite its rhetoric, the City is not expressing any opinion as to the truth or falsity of the Church's position. It is merely expressing an opinion concerning parental fitness regardless of sexual orientation. The City is certainly allowed to have an opinion, and to express it, on the subject of parental fitness. The City would pass a similar resolution in response to a policy like this espoused by any organization, religious or secular. In short, the City's policy is neutral as between religion and non-religion.

This is the weak point in your argument, I think (though I also think one could make a stronger version of this argument that isn't so prone to the following response). I think the endorsement test is the only test that could reasonably be applied here, primarily because the government's action doesn't actually do anything. It's a non-binding resolution, strictly a statement of opinion on the part of the government, so it's really impossible to analyze in terms of its effects or entanglement issues. So the court really has to look at it from an endorsement perspective. And here is where I think your argument runs into problems.

It simply isn't true that the resolution is neutral between religion and non-religion or that the city is not addressing religious issues. The resolution is quite specific in addressing the Catholic Church and calling their doctrinal position hateful, insulting, callous, based on ignorance, and so forth. It further demands (though obviously it can't enforce) that Catholics defy their Church's doctrine. This clearly does address religion quite directly. If the Board had simply taken out a resolution in favor of gay adoptions, or had even said something like this:

"Some religious groups oppose gay adoptions; while we recognize and support the right of any individual or group to hold such a belief, the city's official policy must ensure that those beliefs may not be transformed into actual discrimination that would harm the well being of its citizens and deprive them of their equal rights."

Then I don't think anyone would even blink at it; there certainly wouldn't be any grounds for a lawsuit. There's no question that the government can adopt policies that go against someone's religious views. We do so in a thousand different ways. But to have the government explicitly declare a religious position to be not only wrong, but vile and ignorant and insulting certainly changes the issue. Let me use evolution and creationism as an analogy.

Certainly the government has a secular purpose in teaching evolution in schools, despite the disagreement of perhaps a majority of the population. However, if they did so in a way that specifically and explicitly attacked the religious faith of students, that would be constitutionally problematic. If a teacher began an evolution lecture by saying, "I know that some of your churches teach that evolution is false and that God created everything, but that belief is just stupid and ignorant and insulting to any thinking person. Only a fool would believe it...". Well, that would be a problem, wouldn't it? There's no doubt in my mind that the SF resolution could have been written not to have any constitutional difficulties. As it's written, I think it invites such a suit and I think that suit has a chance of winning.

BorkBorkBork wrote:

OK, I'm not a lawyer: someone fill me in, please. It seems to me that this is not an Establishment issue, but a Free Exercise issue: how does the Lemon test apply?

No, this is purely an establishment clause issue. The legal question is whether the government violated the establishment clause, which the courts have said requires neutrality between religion and non-religion, by issuing a statement explicitly attacking the position of the Catholic Church. I would argue, though, that the Lemon test still doesn't apply because the policy doesn't actually do anything, it's just a declaration. The endorsement test would be the most applicable in this situation.

Here's the other wrinkle in the case: the resolution is arging against a religious position, but specifically against a religious position with a clear effect on public policy. Surely if the government just decided to declare, for example, that belief in the divinity of Jesus or in the virginity of Mary was stupid and ignorant, we could all agree that this would be an establishment clause problem. The government simply has no legitimate reason to be making such a declaration. But this is a position with real consequences for public policy. Which is why I say that they could easily have written a resolution endorsing gay adoptions and asserting the need to protect it as a matter of policy without running into any EC problems at all. But the way it's written, with an explicit attack on the church, I'm not sure it does. And I'm not saying it's an open and shut case for the plaintiffs either. I'm just saying that there's a plausible argument to be made in court and it may be a winning argument.

Thanks, Ed: can I bounce one more question off you?

Regarding 'clear effect on public policy'. Obviously, the city has an interest in placing children in homes. However, there are many child placement programs available which are not part of Catholic Charities. So the public has other relief. I could see taking action if CC was receiving pulic funds, or even operating in public facilities. I could see excluding them from publicly administered and/or co-ordinated programs: but unless there is such a public element involved, wouldn't the Church, the Catholic Charites, and the church members be seen as taking the greater injury to their rights? Or is this concept irrelevant? It would seem that this would be something to consider in a situation like this.

BorkBorkBork wrote:

Regarding 'clear effect on public policy'. Obviously, the city has an interest in placing children in homes. However, there are many child placement programs available which are not part of Catholic Charities. So the public has other relief. I could see taking action if CC was receiving pulic funds, or even operating in public facilities. I could see excluding them from publicly administered and/or co-ordinated programs: but unless there is such a public element involved, wouldn't the Church, the Catholic Charites, and the church members be seen as taking the greater injury to their rights? Or is this concept irrelevant?

I'm not sure what you mean by taking the greater injury to their rights. It's not really a rights question, except to the extent that being free of an establishment of religion is a right. There is certainly a compelling interest, in my view, in legalizing gay adoptions and making sure that gays are not discriminated against in adoption proceedings. I don't know how it works in California, whether they give government funds to private adoption agencies, the way they do in Massachusetts for example, or whether private adoption agencies are self-funded and then the government signs off on the adoptions to make them final. Certainly it's true that if the government provides funding, they can force Catholic Charities to facilitate gay adoptions (although, as I've argued before, there is a plausible case to be made on RFRA grounds for an exemption if there are multiple such agencies that could facilitate them).

By greater injury, I meant that the interference of govt in a religion would be an injury/imposition to the rights of its practitioners. Denying right to adoption to gays would be an injury/imposition of their rights as citizens. In a situation in which the rights of individuals or groups come into conflict(pardon me if I'm being blindingly ignorant here) isn't it considered the proper course to decide in the favor of the party who would incur the greater and/or longer-lasting infringement on their rights? And if so, would not an increase in the difficulty for gay couples to adopt be lesser in scope and permanence than the interference of the government in a religion's doctrine, provided placement for gays seeking to adopt was still provided?

Before anyone starts haranguing, please note that I am not Catholic and have nothing against gay adoption. I just find this interesting, especially as the general discussion on ScienceBlogs and PT tends toward preventing religion insinuating itself into govt, and this would appear to me to be the opposite.

BorkBorkBork wrote:

In a situation in which the rights of individuals or groups come into conflict(pardon me if I'm being blindingly ignorant here) isn't it considered the proper course to decide in the favor of the party who would incur the greater and/or longer-lasting infringement on their rights? And if so, would not an increase in the difficulty for gay couples to adopt be lesser in scope and permanence than the interference of the government in a religion's doctrine, provided placement for gays seeking to adopt was still provided?

I think there's some real confusion here. When weighing two competing rights claims against one another the standard is not which one is more serious or longlasting (though it may well be that the court would consider which right is more "fundamental" than the other; that is, a right that is explicitly stated in the Constitution might take precedence over an unenumerated right, or a right that the court considers more central to questions of self-determination and order liberty might take precedence over a less compelling assertion of a right). The standard really has more to do with whether the government has a legitimate interest in violating either right. But also bear in mind that this particular case really isn't about the government interfering with the rights of a religious group, but merely of taking an official position in opposition to what that group believes. Nothing in the resolution in question makes anyone do or think anything, so there is no violation of anyone's right to free exercise.

I suspect what you are really asking is whether the government can force a Catholic adoption agency to facilitate gay adoptions, or whether the church's right to control their own doctrine should take precedence over the right of gay people to adopt. But on that question, the criteria for deciding it is still quite different from simply measuring with "right" is more important or long-lasting. Most importantly, you have to recognize that while the church certainly has the right to control their own doctrine and the government can't make them change what they teach, there is no "right" to perform adoption services. Adoptions are a public function, not a private one. The state cannot force the Catholic church to do gay adoptions, but they can pass a general law that says you cannot discriminate in adoptions against gays and the church would then have to either comply with that law or stop doing adoptions. Since there is no "right to do adoptions", this doesn't come down to weighing one right against another. As long as the government has a legitimate state interest to justify the policy (and here they clearly do), laws which are generally applicable are constitutionally permissable.

Now, that doesn't mean that governments necessarily should force a Catholic adoption agency to either do gay adoptions or get out of the adoption business. As I argued a few weeks ago on the Massachusetts situation that also dealt with Catholic Services and gay adoptions, I think a good case can be made for granting an exception to the anti-discrimination rule if, and only if, there are other adoption agencies that are complying with the law. In the Massachusetts case, Catholic Services was one of many adoption agencies, all the rest of which do gay adoptions. So in that case, I would have no probem with an exception to the law that allows them to go on doign adoptions for all their regular customers and referring gay couples to other adoptions agencies. As a matter of policy, that would achieve both the goal of making sure gays can adopt while still allowing a valuable and longstanding adoption agency to continue their work.

But that's not necessarily constitutionally required. It might be, if we apply the "least restrictive means" test. But I'm mroe inclined to argue that it's just a good compromise in line with the Religious Freedom Restoration Act. Does that help or have I confused you more?

Thank you: yes, I understand, and I guess I hand't considered that there is not a right to facilitate adoptions: my bad.

I guess I had jumped from considering it a condemnation of the handing of adoption services to the establishment of a government attitude hostile toward a specific religion's doctrine. But I belive you already addressed that issue in an earlier post. Thanks again.

But the church also considers those who are divorced and remarried, or who have been married in certain churches (e.g., most Protestant churches, Mormons, Jehovah's Witness) as living immoral lives, because the church does not recognize their marriages

This is true and not true. The catholic stance on remarriage is more complex than that and allows for the conscience of the individual. You have to discuss it with your priest.

Needless to say, I've always found the churches stance on divorce ludicrous and immoral and frankly according to the majority of biblical scholars...wrong.

My initial lazy response to this is to agree with QengHo: the city was making a statement (not a policy) in support of their non-discrimination policy, and in opposition to one organization that was explicitly acting against it. If they had condemned a Church-affiliated organization for refusing to allow black couples to adopt, I'm pretty sure there'd be very little opposition to that.

On the other hand, I have to say the reference to the Catholic Church as a "foreign country" sounds like a nifty rhetorical point, but it might also, in some people's minds, kinda implicitly slam US Catholics as "agents of a foreign power," which anti-Catholic bigots regularly do.

There's no doubt in my mind that the SF resolution could have been written not to have any constitutional difficulties. As it's written, I think it invites such a suit and I think that suit has a chance of winning.

Quite frankly, I agree. The resolution certainly could have been written to avoid any EC problems, and I think it is a close call as to whether this amounts to an endorsement. But it is still fun to argue it.

This is the weak point in your argument, I think (though I also think one could make a stronger version of this argument that isn't so prone to the following response).

Again, I agree. You've zeroed in on the biggest vulnerability. Purpose should be a nonissue (unless we utilize a purposive neutrality analysis as in McCreary). Endorsement is the critical point. The question, then, is whether a reasonable observer would understand that the City is endorsing or disapproving religion, or endorsing or disapproving something else. I say the City is endorsing the idea that all persons are qualified and competent to be adoptive parents, regardless of sexual orientation. That the contrary viewpoint happens to come from the Catholic Church is irrelevant. In criticizing that contrary viewpoint, of course the City must address its criticism to the Catholic Church -- because the Catholic Church is endorsing that viewpoint. The fact that it comes from the Church doesn't make it religion.

The City is disapproving a "discriminatory and defamatory directive" that arbitrarily disqualifies homosexuals simply because they are homosexuals. The City simply is not concerned with religious doctrine, per se. It does no good to say that this directive is religious doctrine, unless you are prepared to claim that everything a church or its leaders says or does is based upon religious doctrine. Indeed, the Resolution is careful to avoid criticizing any doctrinal position.

I would agree with your creationism analogy if it was on point with what happened here, but again I see significant differences. The City is not espousing the truth or falsity of any religious doctrine; it is simply criticizing a Church directive as being inconsistent with the City's long established policy. Similarly, the City is not telling any Catholic, or any other person, that he or she is "just stupid and ignorant and insulting to any thinking person" because of his or her faith.

Would the situation be different, in your mind, if instead of disqualifying homosexuals, the Church disqualified African Americans or Hispanics? Or Protestants or Muslims? Or divorcees who've not had an annulment? Or tall people or short people? Would the City be on more or less solid ground for criticizing a disqualification on any of those bases?

I'll stop rambling. This has been fun; I'd say the lawsuit is probably a coin flip. Wish you'd show up in one of my classes one day... .