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Circuit Rejects Suit Over|City’s Criticism of Vatican

(CN) - In a fractured 8-3 ruling Friday, the 9th Circuit rejected a lawsuit filed by Catholics over San Francisco's non-binding resolution denouncing the Vatican's stance on gay adoptions.

The federal appeals court voted 8-3 to uphold dismissal of a lawsuit filed by the Catholic League for Religious and Civil Rights and two local residents after the San Francisco Board of Supervisors passed a non-binding resolution urging Catholic charities to allow same-sex adoption.

The 2006 resolution states: "It is an 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."

The resolution denounces as "absolutely unacceptable" statements by Cardinal William 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."

"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," the resolution states.

A three-judge panel of the 9th Circuit upheld the resolution last June, but the court later voted to rehear the case before a full 11-judge panel.

The larger panel voted 8-3 to reject the lawsuit, but the majority did not address the underlying issue of whether the resolution violated the separation of church and state.

The six judges who addressed that question were divided 3-3.

Judges Andrew Kleinfeld, Sandra Ikuta and Jay Bybee said the city "cannot constitutionally prescribe a religious orthodoxy and condemn heresy on homosexuality, or anything else."

"For the government to resolve officially that 'Catholic doctrine is wrong,' is as plainly violative of the Establishment Clause as for the government to resolve that 'Catholic doctrine is right,'" Kleinfeld wrote.

But Judges Barry Silverman, Sidney Thomas and Richard Clifton insisted that city officials "have the right to speak out in their official capacities on matters of secular concern to their constituents, even if their statements might offend the religious feelings of some of their other constituents."

Silverman said the resolution "had a primarily secular purpose and effect and addressed a matter of indisputably civic concern."

The remaining five judges said the court need not decide the Establishment Clause issue, because the Catholic plaintiffs failed to allege that the resolution "applies to them in some direct and concrete manner."

"In the end ... the resolution carries no legal effect and, perhaps more importantly, does not apply to Plaintiffs," Judge Susan Graber wrote, joined by Judges Pamela Rymer, Michael Daly Hawkins and Margaret McKeown, and Chief Judge Alex Kozinski.

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