EDITOR’S NOTE: Please join me in welcoming Jack Smith as a guest blogger to CatholicVote.org.
In theory, the Ninth Circuit already has.
So as you know, politicians in Chicago and Boston threaten to block the establishment of a Chik-fil-A outlet in their environs because the company’s CEO admits, when asked by a religious publication, that he believes in “the biblical definition of the family unit.”
“Those aren’t our values,” Chicago Mayor Rahm Emmanuel said.
So the question arises, would the decision to refuse necessary permits for the operation of a business based solely on the owner’s unpopular speech or religious belief survive court scrutiny? The answer is clearly “no,” and there is plenty of precedent to prove it.
Unless, a troubling opinion by the Ninth Circuit Court of Appeals seems to suggest, that unpopular religious belief entails opposition to same-sex marriage.
Early in 2006, Cardinal William Levada, then-Prefect of the Congregation for the Doctrine of the Faith, issued a statement clarifying that Church agencies should not place children for adoption with same-sex couples. The statement had particular significance for Levada’s former Archdiocese of San Francisco, whose Catholic Charities agency had been placing children for adoption with same-sex couples.
In response to Cardinal Levada’s statement, the San Francisco Board of Supervisors passed a resolution denouncing the Vatican’s foreign meddling, demanding Levada retract his “hateful,” “insulting,” “discriminatory,” “callous” and ignorant directive, and urging current San Francisco Archbishop George Niederauer and Catholic Charities “to defy all discriminatory directives of Cardinal Levada.”
Reminiscent of Rahm Emmanuel’s statement above, the Board of Supervisors declared the Church’s belief on marriage and adoption to be “absolutely unacceptable to the citizenry of San Francisco.”
The Board of Supervisors had no direct leverage here because The City did not fund Catholic Charities’ adoption program and there was no state law, as in Massachusetts, requiring non-discrimination against same-sex couples in adoption placement.
The City did however fund other programs of Catholic Charities and during debate on the resolution, Supervisors made it clear that non-compliance with the City’s demands would place those other programs in jeopardy.
Suit was filed by the Catholic League claiming the official condemnation of the religious beliefs of Catholics by the City of San Francisco constituted a violation of the Establishment Clause. How the Ninth Circuit ultimately ruled on that is not as interesting as why (This is the Ninth Circuit after all). And the why has chilling implications for the current Chik-fil-A controversy.
In June 2009, a three member panel of the Ninth Circuit confirmed the ruling of a lower court throwing out the Catholic League’s suit. The panel said that the City’s action did not violate the Establishment Clause because, per the Lemon test, the resolution “was grounded in a secular purpose,” and not a “predominantly religious purpose.” Judge Richard A. Paez’ ruling said:
an objective observer would conclude that the Board’s purpose was to champion needy children, gays, lesbians, and same-sex couples within its jurisdiction; not to officially disapprove of the Catholic faith or its religious tenets.
The Catholic League appealed and in October, the full Ninth Circuit took up the case en banc. By an 8-3 majority, the full court agreed with the earlier panel and dismissed the Catholic League’s case. The court’s opinion found that:
We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are.
Now, obviously, this case is not directly relevant to any potential challenge to a ban on Chik-fil-A. To begin with, this has to do with the Establishment Clause and not the Free Speech clause upon which any challenge to a Chik ban would be based. Second of all, in the San Francisco case, the Board of Supervisors was seeking to address what it believed to be actual discrimination and not just speech or belief, ie., the actual refusal to place children for adoption in same-sex homes.
However, the notion that official government disapproval of a religious institution does not violate the First Amendment if the main purpose is to support the grand “secular purpose” of same-sex marriage is relevant. It puts the government’s interest in same-sex marriage on a pedestal far higher than that once reserved for the First Amendment.
It is not a stretch to consider that some jurisdiction, someday, may agree that the mere expression of a belief at odds with the government’s support of that high pedestal is “absolutely unacceptable.” Politicians are already making that argument.
Jack Smith is editor of The Catholic Key and former editor of Catholic San Francisco.