Those wonderful folks who helped bring you the Dover trial are representing the Plaintiff in the case of Catholic League for Religious and Civil Rights v. City and County of San Francisco, 464 F. Supp 2d 938, and have recently appealed a ruling by a Federal Judge which upheld the San Francisco Board of Supervisors resolution “condemning Catholic moral teaching on homosexuality and urging the Archbishop of San Francisco and Catholic Charities of San Francisco to defy Church directives…”
Here are the facts. Cardinal William Joseph Levada was transferred to the Vatican after Cardinal Ratzinger (now Pope Benedict) was promoted, and took over the Congregation for the Doctrine of the Faith (formerly the Inquistion). As the head of this auspicious entity, he directed that Catholic Charities (the social services arm of the Catholic Church) discontinue allowing adoptions to gay couples, (though one wonders why they ever did, given the official church doctrine on homosexuality). The San Francisco School Board retaliated by passing a non-coercive resolution condemning the Catholic Church for its bigotry, criticizing Cardinal Levada for his actions, and calling on local church officials to defy the cardinal’s directive (like that was going to happen). The Church then filed suit claiming that the Board of Supervisors resolution violated the Establishment Clause of the First Amendment. Judge Patel, on pre-trial motion (known as a 12(b)(6) motion), found that 1) the resolution had a secular purpose; 2) the primary effect was not a disapproval of religion; and 3) it did not foster excessive state entanglement with religion. The Court applied the Lemon test, which is a test first enunciated by the Supreme Court in the case of Lemon v. Kurtzman, a case relied upon heavily by Judge Jones in the Dover case, and indeed by most cases since 1994 involved in determining violations of the Establishment Clause.
Enter the Thomas More Legal Center, which, in conjunction with the Discovery Institute, previously instigated the litigation in, and subsequently handled the defense of, the Dover, Pennsylvania, School Board when they were sued to prevent the teaching of Intelligent Design in science class. For readers who are not familiar with them, the TMLC is an organization set up by Domino’s Pizza billionaire Tom Monaghan to defend and promote “religious freedom of Christians, time-honored family values, and the sanctity of human life.”
So far, there is nothing wrong with this. This is America, and being the litigious society we are, litigation like this is normal. It keeps lawyers in business, so I don’t complain – too much.
But some of the statements from the TMLC are a tad hyperbolic.
“Richard Thompson, President and Chief Counsel of the Law Center, observed, “Judge Patel clearly exhibited hostility toward the Catholic Church. During oral argument and in her written decision she claimed that the Church ‘provoked the debate’ by publicly expressing its moral teaching, and that by passing the resolution the City responded ‘responsibly’ to all of the ‘terrible’ things the Church was saying. This judge attempted to rationalize the evocative rhetoric and venom of the resolution which are sad reminders of Catholic baiting by the Ku Klux Klan.”
Does this sound like the poor church, which is more than1700 times larger (in population) than the city of San Francisco, is being persecuted? It certainly gives the impression that the Church, which does have protections under the First Amendment, really is concerned about what a few Supervisors think, even if those Supervisors are powerless to do much about it, other than exercise their Free Speech rights in denouncing the Church’s arguably hypocritical position. Don’t forget: the suit was brought by the church and the TMLC specifically to enjoin the city from”criticizing and attacking religion and religious beliefs”. What are they afraid of? But there’s more (no pun intended)!
Thompson remarked, “The policy of San Francisco is one of totalitarian intolerance of Christians of all denominations who oppose homosexual conduct. My concern is that if the judge’s ruling is allowed to stand, it will further embolden the San Francisco Board in its anti-Christian attacks.”
Yep, they do sound put upon, don’t they?
But then the zinger:
Robert Muise, the Thomas More Law Center attorney handling this matter, observed, “Our constitution plainly forbids hostility toward any religion, including the Catholic faith. In total disregard for the Constitution, homosexual activists in positions of authority in San Francisco have abused their authority as government officials and misused the instruments of government to attack the Catholic Church. Their egregious abuse of power now has the backing of a federal judge.”
The Constitution forbids hostility toward any religion? Hmmm. Where does it say that? The government is not allowed to favor religion over non-religion, or vice versa, nor is it allowed to favor one religion over another, but there are many official policies of the government that one religion or another doesn’t particularly care for. Abortion for example, is protected (at least for the time being) by the Constitution, and hence by the police power of the state, but I can count as many religions as I have toes and fingers, and then some, that find that reprehensible, and an insult to their particular dogma. Hostility toward religion is not the same thing as establishing a religion. Hell, the mere fact that the US is a secular country, with a First Amendment, could be deemed hostile to religion, according to preachers in some pulpits.
But I like this Judge:
When Mr. Muise explained to the judge that the constitution is a restriction on government because the government has the power of the law to coerce behavior, the judge responded coldly, ‘You saying, the power to condemn someone to Hell isn’t more important to some people than being condemned by the state to have to pay a fine or go to jail?’ Mr. Muise, who was stunned by this comment, responded by explaining that the Church doesn’t condemn anyone to Hell, only God has that authority. To which the judge wryly stated, ‘I’m glad to hear that.’”
Can’t you just feel the hostility?
Unfortunately, if it makes it past the 9th Circuit Court of Appeals, and the Supreme Court gets the case, I don’t hold out much hope for her opinion being upheld.