The Volokh Conspiracy - Government Responses to Religious Organizations' Views on Secular Issues:

Earlier this year, the San Francisco board of supervisors condemned Catholic approaches to adoption by homosexual households, in this nonbinding resolution:

Resolution urging Cardinal William Levada, in his capacity has 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 a 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.

I opined that the resolution was constitutional, though troubling on certain nonconstitutional grounds. But the Catholic League for Religious & Civil Rights went further, and sued, claiming that the resolution violated the Establishment Clause. Last week, federal district court Judge Marilyn Hall Patel rejected that lawsuit (2006 WL 3462879); here's a particularly telling excerpt:

Accepting plaintiffs' position would mean that any religiously-initiated debate even on a political issue could not be joined by a publicly-elected body's response without resulting in excessive entanglement. The [Considerations Regarding Proposals To Give Legal Recognition To Unions Between Homosexual Persons] document [issued by the Catholic Church's Congregation for the Doctrine of the Faith] not only states the Vatican's position with regard to homosexual unions, but also instructs Catholic politicians as to their duties as Catholics. Article IV, section 10 of the document states that

If it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians. Faced with legislative proposals in favour of homosexual unions, Catholic politicians are to take account of the following ethical indications.

When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral. When legislation in favour of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in ways that are possible for him and make his opposition known; it is his duty to witness to the truth.

Section 10 goes on to state that it is the duty of the Catholic politician to seek the total abrogation, or at least the partial repeal, of legislation in favor of homosexual unions.

The Congregation for the Doctrine of the Faith provoked this debate, indeed may have invited entanglement, by its Considerations statement. This court does not find that our case law requires political bodies to remain silent in the face of this provocation. Elected officials are certainly free to express their electorates' views. Ordinarily this is done in the form of a resolution or similar statement adopted by the political body.

In view of Article IV, section 10, of the Considerations statement, Resolution 168-06 is a measured response. It does not constitute excessive entanglement under existing case law. There is no regulatory enforcement, no law adopted nor other action taken by virtue of the Resolution. It is merely the exercise of free speech rights by duly elected office holders. In sum, Resolution 168-06 does not create an impermissible entanglement between government and religion. Because plaintiffs have also failed to establish that Resolution 168-06 lacks a primarily secular purpose or a primarily secular effect, plaintiffs have failed to plead a cause of action under the Establishment Clause.

I'm not sure the court was right to rely so clearly on the Congregation's Considerations statement; I think the Board of Supervisors would have been equally free to express its views even had the statement never been issued. Nonetheless, the court was correct to point out that debate between religious entities and others, including government actors, on issues that have a secular dimension (i.e., aren't purely theological, or focused on scriptural interpretation) should be free to both sides. The Church is free to express its views on San Francisco's stands; and the Establishment Clause does not bar San Francisco from expressing its views on the Church's stands.

	[Eugene Volokh, December 4, 2006 at 4:45pm] Trackbacks Government Responses to Religious Organizations' Views on Secular Issues: Earlier this year, the San Francisco board of supervisors condemned Catholic approaches to adoption by homosexual households, in this nonbinding resolution: Resolution urging Cardinal William Levada, in his capacity has 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 a 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. I opined that the resolution was constitutional, though troubling on certain nonconstitutional grounds. But the Catholic League for Religious & Civil Rights went further, and sued, claiming that the resolution violated the Establishment Clause. Last week, federal district court Judge Marilyn Hall Patel rejected that lawsuit (2006 WL 3462879); here's a particularly telling excerpt: Accepting plaintiffs' position would mean that any religiously-initiated debate even on a political issue could not be joined by a publicly-elected body's response without resulting in excessive entanglement. The [Considerations Regarding Proposals To Give Legal Recognition To Unions Between Homosexual Persons] document [issued by the Catholic Church's Congregation for the Doctrine of the Faith] not only states the Vatican's position with regard to homosexual unions, but also instructs Catholic politicians as to their duties as Catholics. Article IV, section 10 of the document states that If it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians. Faced with legislative proposals in favour of homosexual unions, Catholic politicians are to take account of the following ethical indications. When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral. When legislation in favour of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in ways that are possible for him and make his opposition known; it is his duty to witness to the truth. Section 10 goes on to state that it is the duty of the Catholic politician to seek the total abrogation, or at least the partial repeal, of legislation in favor of homosexual unions. The Congregation for the Doctrine of the Faith provoked this debate, indeed may have invited entanglement, by its Considerations statement. This court does not find that our case law requires political bodies to remain silent in the face of this provocation. Elected officials are certainly free to express their electorates' views. Ordinarily this is done in the form of a resolution or similar statement adopted by the political body. In view of Article IV, section 10, of the Considerations statement, Resolution 168-06 is a measured response. It does not constitute excessive entanglement under existing case law. There is no regulatory enforcement, no law adopted nor other action taken by virtue of the Resolution. It is merely the exercise of free speech rights by duly elected office holders. In sum, Resolution 168-06 does not create an impermissible entanglement between government and religion. Because plaintiffs have also failed to establish that Resolution 168-06 lacks a primarily secular purpose or a primarily secular effect, plaintiffs have failed to plead a cause of action under the Establishment Clause. I'm not sure the court was right to rely so clearly on the Congregation's Considerations statement; I think the Board of Supervisors would have been equally free to express its views even had the statement never been issued. Nonetheless, the court was correct to point out that debate between religious entities and others, including government actors, on issues that have a secular dimension (i.e., aren't purely theological, or focused on scriptural interpretation) should be free to both sides. The Church is free to express its views on San Francisco's stands; and the Establishment Clause does not bar San Francisco from expressing its views on the Church's stands.