DriveThru – Get What You Need

Can the government condemn, even in a “non-binding resolution,” the religious beliefs of its citizens and not violate the First Amendment’s Establishment Clause? That’s the issue in a lawsuit over a 2006 San Francisco Board of Supervisors resolution condemning the Catholic Church’s position on gay adoption. After a trial judge and a 3-judge panel of the 9th Circuit U.S. Court of Appeals both said “yes” in answer to the question, the rest of the judges on the 9th Circuit voted this week to re-hear the case in front of an 11-judge panel. Bottom line – a significant number of judges appear to be concerned that neither the trial judge nor the 3-judge panel got it right.

That’s good news. The San Francisco Board of Supervisors has a history of slandering and condemning any religious behavior that might be construed as not affirming homosexual behavior.

Just so you get a flavor of the language in the Board of Supervisors’ resolution, here are some excerpts:

“…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…”

“…Such hateful and discriminatory rhetoric …”

“…The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese to defy all discriminatory directives of Cardinal Levada…”

“…withdraw his discriminatory and defamatory directive…”

Both the trial court and the 3-judge 9th Circuit panel that heard this case felt that the City’s name-calling and “urging” of the local Catholic clergy and adoption agencies to disobey the teachings and directives of the church hierarchy had a “secular purpose” and, even more incredibly, that the resolution did not have the principal or primary effect of conveying hostility toward religion. Oh, really?

I’m looking forward to seeing if the 11-judge en banc panel reverses this decision.

Pro-family leader Kelly Shackelford is having a busy year. Besides his involvement in the ACORN lawsuit, he is representing the Veterans of Foreign Wars in a First Amendment case, scheduled to be heard by the Supreme Court on October 7. Since the United States is the principal defendant in the case, Kelly’s helping the U.S. Solicitor General, Elana Kagan, prepare for the oral argument. He’s also penned an amicus brief on behalf of the VFW.

What’s at stake in this case? The Mojave Desert Veterans Memorial – a cross erected over 75 years ago by private citizens on federal land in the middle of absolutely nowhere, California. So of course the ACLU religion-scrubbing squad found someone who was willing to drive out there, be offended by it, and start a lawsuit.  

Crosses have a long history of being used in many places, including on federal land, as markers or memorials. Think of Arlington National Cemetery.  But somehow this Mojave Desert memorial has struck a nerve over at the ACLU. The federal government even bent over backwards in this case by transferring the small patch of land on which the memorial stands to the private group that takes care of this cross, in order to avoid the inference that the government is “favoring” the Christian religion. Not good enough for the ACLU. Besides the land “transfer” issue, the Court will examine the issue of “standing” (i.e. has this plaintiff suffered a concrete injury entitling him or her to bring a lawsuit?).

More info on that case can be found at www.donttearmedown.com.