Gay Adoption Resolution Didn’t Attack Catholicism

(CN) - The 9th Circuit upheld a non-binding resolution by the San Francisco Board of Supervisors urging Catholic charities to allow same-sex adoption and calling their stance against it "insulting and callous." The judges said the resolution passed constitutional muster because it had a secular purpose.

The board passed the resolution in response to a directive issued by Prefect Cardinal William Levada, instructing the Archdiocese of San Francisco to bar Catholic social services from placing children in the homes of adoptive gay and lesbian couples.

"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 2006 resolution states.

"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," it continues.

"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 board added that gay couples are "just as qualified to be parents" as heterosexual couples.

The Catholic League for Religious and Civil Rights filed suit in federal court, claiming the resolution violates the separation of church and state by expressing disapproval of and hostility toward the Catholicism.

The Catholic League sought "nominal damages, a declaration that this anti-Catholic resolution is unconstitutional, and a permanent injunction enjoining this and other official resolutions, pronouncements, or declarations against Catholics and their religious beliefs."

U.S. District Judge Marilyn Patel dismissed the case on the grounds that the plaintiff's complaint did not meet the three-part Lemon test. Under the test, government action passes constitutional muster if it: "(1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion."

The Lemon test frequently applies to cases alleging endorsement , not disapproval, of religion.

Judge Paez rejected the Catholic League's claim that the purpose of the resolution was clearly to attack Catholic religious beliefs. Instead, Paez took the board's view that the resolution was meant to "denounce discrimination against same-sex couples."

Paez noted that governmental policies often coincide or conflict with religious tenets, but that alone doesn't strip the government of its secular purpose.

"[I]f consistency with religious beliefs is not endorsement of religion, inconsistency is not hostility to it," Paez wrote.

The resolution is constitutional, the court concluded, because it conveys the primary message of promoting same-sex adoption, not attacking Catholic beliefs.

Judge Berzon concurred, but found the result "troublesome." The Constitution assures believers that the government will not take positions condemning their religious beliefs, Berzon said. The judge expressed concern that resolutions like the one in this case "are near - if not at - the line that separates the establishment of such a policy."

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