A Ninth Circuit panel said no in June, and I thought its ruling was correct, though I disapproved of San Francisco’s resolution on nonconstitutional grounds. But yesterday, the Ninth Circuit agreed to rehear the case en banc, so it might be that the panel decision will be reversed (though I still think that it’s correct).
Thanks to Religion Clause for the pointer.
Categories: Religion and the Law
Houston Lawyer says:
I don’t see any possible violation, since the resolution is just an expression of opinion. But would they also condemn the local mosques, which are also not exactly gay friendly?
Quote
November 6, 2009, 1:58 pmptt says:
What do you know about the local mosques here in SF?
Quote
November 6, 2009, 2:19 pmtroll_dc2 says:
The question was raised in the earlier thread, but it is still pertinent: how did the plaintiffs get standing to sue? The panel opinion makes no mention of this matter, and it is not obvious to me how the plaintiffs were harmed by the board’s resolution. That they were unhappy with the resolution does not in itself constitute injury-in-fact so far as I understasnd Supreme Court precedent on standing.
Quote
November 6, 2009, 2:28 pmPatHMV says:
There’s always difficulty finding plaintiffs with standing for Establishment Clause cases. Leaving that issue aside, though, I continue to think that this resolution does violate the constitution, because it attempts to interfere (granted, in a non-binding fashion) with the internal hierarchy of a religious institution, because it specifically calls on the local bishop to disregard the instructions he has received from the Catholic chain of command. I set this out in more detail at Stubborn Facts.
Quote
November 6, 2009, 2:35 pmArrowSmith says:
Nice going through life, being so obtuse.
Quote
November 6, 2009, 3:38 pmptt says:
If knowing that Catholic Charities is the City’s primary contractor for social services while no mosque provides any City-contracted services except what appears to be an outreach office for the upcoming Census makes me “obtuse”, so be it.
Quote
November 6, 2009, 4:00 pmPatHMV says:
Will the loser get a super-duper en banc hearing?
Quote
November 6, 2009, 5:40 pmPatHMV says:
Let me add that while I hope the court overrules the verdict, I think it’s probably a poor use of limited judicial resources to spend a lot of time on this particular idiocy from the San Francisco city council.
Quote
November 6, 2009, 5:41 pmJoe says:
The concurring opinion suggests the case approaches the line of illegitimate hostility to religion, citing a dissent to an earlier case also involving homosexuality. The dissent by Judge Noonan might be of interest and probably influenced the acceptance of en banc review.
Quote
November 6, 2009, 5:47 pmThe Watcher says:
Because we really shouldn’t say anything when a government condemns a group of persons based on religion. Just smile and nod and give the government a covert thumbs up becuase we hate those dirty people, too.
That never leads to camps and gas chambers and stuff. No-siree bob.
Quote
November 6, 2009, 7:42 pmreadery says:
When government condemns a church, by name, for its doctrines, it is not making a statement about public policy of any kind. It is establishing a statement about religion, pure and simple.
Quote
November 8, 2009, 3:29 pmreadery says:
For the same reason people opposed to using a cross as a war memorial had standing to sue. There is an exception to general standing doctrine for establishment clause cases: people who are offended by government doing something that they claim talks up religion have standing to sue even though in other contexts people aren’t considered harmed simply because they happen to be offended by what others say.
If people who are offended when government does something that can be consrued as indirectly talking religion up get standing to sue, the same has to be true for people who are offended when government very directly talks religion down. What’s sauce for the goose is sauce for the gander.
Quote
November 8, 2009, 3:34 pmDilan Esper says:
When government condemns a church, by name, for its doctrines, it is not making a statement about public policy of any kind. It is establishing a statement about religion, pure and simple.
The last time I checked, the First Amendment did not impose a restriction on a governmental body criticizing a church, any more than it imposes restrictions on churches criticizing govenrmental bodies.
Put another way, if the church can’t take it, it shouldn’t be dishing it out.
Quote
November 8, 2009, 9:06 pmreadery says:
in West Virginia v. Barnette, the Court held
The City of San Francisco did exactly this. Orthodox means “right [i.e. correct] doctrine.” When the City of San Francisco proclaims that what the Catholic Church believes is not correct religious docrine, it is prescribing what is religiously orthodox in the literal sense of the word.
Quote
November 9, 2009, 3:52 amDilan Esper says:
The City of San Francisco did exactly this. Orthodox means “right [i.e. correct] doctrine.” When the City of San Francisco proclaims that what the Catholic Church believes is not correct religious docrine, it is prescribing what is religiously orthodox in the literal sense of the word.
Somehow, you completely missed the point of Barnette.
To put it very crudely:
1. Government official telling religious people that they must salute flag = prescribing orthodoxy.
2. Government official not forcing religious people to do anything but opining that their beliefs are full of crap =/ prescribing orthodoxy.
Got it?
Quote
November 9, 2009, 1:38 pmreadery says:
Oren,
‘dox’ means belief. Saluting the flag involves praxis.
Government oficials can of course say whatever they want on their own dime. But a city council resolution isn’t quite the same thing as a government official offering a personal opinion.
Quote
November 10, 2009, 2:33 amJohn says:
Well, actually as the Court made clear, that IS what the First Amendment does indeed prohibit.
The funny thing is, till I read the Court’s rationale for why this particular action wasn’t unconstitutional, it actually convinced me it was.
Quote
November 10, 2009, 3:01 pm