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Politics

Politic- The AFA Sues the San Francisco Board of Supervisors


I include this here as a reference to the type of lawsuits some in Christianity have brought .. 
 
What is this about? 


This occurred in 1999 when the AFA (American Family Association)   and others advertised for a Love Won Out conference.  The lawsuit   is a response to a letter sent to the AFA, FRC and others stating that the AFA and others were directly responsible for crimes committed against gays and lesbians including the murder of Matthew   Shepherd.  The lawsuit also addressed the resolution that the S.F.  Board of Supervisors passed which urged TV stations not to run the Truth in Love commercials (exgay ads) which were sponsored by   these Christian organizations. This was viewed by the AFA as government hostility toward religion.  

The above information is gleaned from the 1999 AFA action alert http://www.afa.net/law/pr991006.htm (no longer active) 

The exact content of the letter from S.F. from court documents.. 

Supervisor Leslie Katz denounces your hateful rhetoric against   gays, lesbians and transgendered people. What happened to   Matthew Shepard is in part due to the message being espoused by   your groups that gays and lesbians are not worthy of the most basic  equal rights and treatment. It is not an exaggeration to say that there is a direct correlation between these acts of discrimination, such as   when gays and lesbians are called sinful and when major religious organizations say they can change if they tried, and the horrible   crimes committed against gays and lesbians. 

The content of the resolution per court documents… 

The second resolution, No. 873-98, was specifically directed at "anti-  gay" television advertisements. It recited that a coalition had   introduced a nationwide television advertisement campaign to   encourage gays and lesbians to change their sexual orientation,   and listed one of the Plaintiffs by name.  The resolution asserted   that the organizations "promote an  agenda which denies basic   equal rights for gays and lesbians  and routinely state their   opposition to toleration of gay and  lesbian citizens" and stated that   a "prominent San Francisco newspaper" chose to accept and   publish a printed advertisement campaign.   

The resolution contended that "the vast majority of medical,   psychological and sociological evidence supports the conclusion   that sexual orientation cannot be changed" and that ads insinuating   as much are “erroneous and full of lies." The resolution also stated   that ads suggesting gays or lesbians are "immoral and undesirable   create an atmosphere which validates oppression of gays and   lesbians" and encourages maltreatment of them. The Resolution   claimed a "marked increase in anti-gay violence" that coincided with  "defamatory and erroneous campaigns" against gays and lesbians.  It then urged "local television stations not to broadcast advertising   campaigns aimed at `converting' homosexuals." 

The AFA’s three issues of complaint in their suit.. 

(1) a violation of the Establishment Clause, alleging  San Francisco's actions disapproved of a particular religion; 

(2) a violation of the Free Exercise Clause, violating their  right to free exercise of religion; and 

(3) a "hybrid" cause of action, violating their rights to free exercise of   religion and chilling the exercise of their free speech rights. 

The determination of the court   

(This is a very abridged version of the court conclusion .. for full documentation see here  http://www.ca9.uscourts.gov/ca9/newopinions.nsf/45E0EB82A5FE0A4088256B42007A7002/$file/0016415.pdf?  openelement?  Link not active

I.    Establishment Clause  (the AFA's first issue) 

 
A. The Lemon Test 

 The Establishment Clause of the First Amendment to the United   States Constitution provides that "Congress shall make no law   respecting an establishment of religion. " U.S. Const. amend. I. This   clause applies not only to official condonement of a particular   religion or religious belief, but also to official disapproval or hostility   towards religion. 

To survive the test, the government conduct at issue must; 

(1)  have a secular purpose, 

(2) not have as its principal or primary effect advancing or  inhibiting religion and 

(3) not foster an excessive government  entanglement with religion. 

  1.   Secular Purpose 

 "The purpose prong of the Lemon test asks whether government's  actual purpose is to endorse or disapprove of religion."…. 

We … agree with the district court that although the letter and   resolutions may appear to contain attacks on the Plaintiffs' religious   views, in particular that homosexuality is sinful, there is also a   plausible secular purpose in the Defendants' actions -- protecting   gays and lesbians from violence -- and that therefore the Plaintiffs  could not state a claim under the purpose prong. 

2.   Primary Effect 

 Under the second prong of the Lemon test, we must consider  whether the government action has the principal or primary  effect of advancing or inhibiting religion. 

The 2nd resolution and the letter to the Plaintiffs present a closer   question. These documents are directly aimed at the Plaintiffs and   both documents contain statements from which it may be inferred   that the Defendants are hostile towards the religious view that   homosexuality is sinful or immoral. Nonetheless, we believe the   district court properly concluded that this was not the principal effect   of the Defendants' actions. The documents, read in context as a   whole, are primarily geared toward promoting equality for gays and   discouraging violence against them. 

3. Excessive entanglement 

The excessive entanglement prong does not easily fit the current   case. Plaintiffs argue that the Defendants' actions have encouraged   political divisiveness along religious lines and that this is sufficient   to constitute excessive entanglement with religion. Political   divisiveness, however, “has never been relied upon as an   independent ground for holding a government practice   unconstitutional.". Although Plaintiffs contend that homosexuality is   an "emotionally explosive" issue that engenders political   divisiveness, if this were enough to create an Establishment Clause   violation on entanglement grounds, government bodies would be at   risk any time they took an action that affected potentially religious   issues, including abortion, alcohol use, other sexual issues, etc. 

B. State constitutional claims 

Because the Defendants' actions pass all three prongs of the   Lemon test, Plaintiffs have failed to state a claim under the   Establishment Clause of the United States Constitution.  This   outcome dictates the result as to the Plaintiffs' state claims as well,   because California courts also apply the Lemon test when analyzing   violations of California's Establishment Clause….. Plaintiffs have   thus also failed to state a claim under the California Constitution. 

II. Free Exercise   (the AFA's second issue) 

The Free Exercise Clause of the First Amendment provides that   "Congress shall make no law respecting an establishment of   religion, or prohibiting the free exercise thereof  . . .  Plaintiffs overlook a critical distinction, however: in this  case, there is no actual "law" at issue. In fact, there does not  appear to be any case in this circuit applying Smith or Lukumi  to some non-regulatory or non-compulsory governmental  action -- in other words, to something other than an actual  law. 

In this case, Plaintiffs allege in the complaint that the  Defendants' actions violated their free exercise rights and  chilled the exercise of their free speech rights. We have previously  explained, however, that when the challenged government  action is neither regulatory, proscriptive or compulsory,  alleging a subjective chilling effect on free exercise rights is  not sufficient to constitute a substantial burden. 

III. Hybrid Claim    (the AFA's third issue) 

In Smith, the Supreme Court noted that free exercise  claims implicating other constitutional protections, such as  free speech, could qualify for strict scrutiny review even if the  challenged law is neutral and generally applicable. 494 U.S.  at 881-82. In this circuit, to make out a hybrid claim, a "free  exercise plaintiff must make out a colorable claim that a companion  right has been violated." 

A.   Orthodoxy of Belief 

The Plaintiffs' first free speech argument is that the Defendants  have prescribed an orthodoxy of belief on the subject of  homosexuality. Although Plaintiffs correctly cite dozens of  cases for the principle that the government cannot prescribe  …  We agree with the host of other circuits that recognize  that public officials may criticize practices that they would  have no constitutional ability to regulate, so long as there is  no actual or threatened imposition of government power or  sanction. 

See, e.g., Penthouse Int'l Ltd. v. Meese, 939 F.2d  1011, 1015-16 (D.C. Cir. 1991) (public officials entitled to  criticize publishers of pornography where letter contained no  threat or intimation of intent to prosecute or prescribe publisher's  conduct  …. 

In this case, although the Defendants may have criticized Plaintiffs'   speech (or at least the perceived effect of it) and urged television   stations not to air it, there was no sanction or threat of sanction if the   Plaintiffs continued to urge conversion of homosexuals or if the   television stations failed to adhere to the Defendants' request and   aired the advertisements.  Therefore, the Plaintiffs have failed to   allege a colorable free speech claim and the district court properly  dismissed this portion of the hybrid claim. 

B. Viewpoint Discrimination 

The Plaintiffs' viewpoint discrimination claim fails largely for the   same reason. In fact, the opening line in this section of their   appellate brief demonstrates the problem: "The First Amendment   does not permit the City to impose special prohibitions on those   speakers who express views on disfavored subjects" (emphasis   added). Again, the authorities cited by Plaintiff involve sanctions,   denial of funding, or some affirmative consequence associated with   a particular viewpoint. …. 

CONCLUSION 

The district court properly dismissed the Plaintiffs' Establishment  Clause claim because the Defendants' actions had a plausible   secular purpose, did not have the primary effect of inhibiting religion   and did not create excessive entanglement with religion. The district   court properly dismissed the Plaintiffs' free exercise claim because   the Defendants' conduct was neither regulatory nor proscriptive and   Plaintiffs alleged no more than a subjective chilling effect on their   free exercise of religion. The district court also properly dismissed   Plaintiffs' hybrid free exercise/free speech claim because Plaintiffs   had not stated a colorable free speech claim in that the Defendants'  conduct did not sanction or threaten to sanction their speech. 

One of the justices dissented… 

NOONAN, Circuit Judge, dissenting: This case is a skirmish in the   culture wars of the last century.  Our culture has been the product, at   least in part, of Jewish and Christian religious teaching; and the   culture wars have, almost inevitably, brought about challenges to that  teaching. The plaintiffs here emphasize the religious roots and  religious nature of their message. The defendants focus on  secular consequences of a message that they nonetheless  maintain comes from a religious group using such a fundamentally  religious category as sin.…… 

With agreement, then, as to the nature of our review and the   constitutional criteria to be applied, where do the majority opinion   and the dissent part company? First, as to the primary effect of the   city's letter. The letter states that “what happened to Matthew   Shepard" (that is, what is taken to be generally known, Shepard's   vicious murder by anti-gay assailants) was "in part due to the   message being espoused by your groups." 

The letter further asserts "a direct correlation " between such  an event and calling gays and lesbians "sinful. " Similarly, the  city's resolution "condemning the hate motivated murder of  Billy Jack Gaither" begins with a condemnation of Mr. Gaither's  murder and ends with a call on "the Religious Right" to "take   accountability" for its rhetoric, which can "open the door to horrible   crimes, such as those committed against Mr. Gaither." To assert   that a group's religious message and religious categorization of   conduct are responsible for murder is to attack the group's religion. 

Suppose a city council today, in the year 2002, adopted a  resolution condemning Islam because its teachings embraced  the concept of a holy war and so, the resolution said, were  "directly correlated" with the bombing of the World Trade  Center. Plausibly the purpose might be to discourage terror  bombings. Would any reasonable, informed observer doubt  that the primary effect of such an action by a city could be the  expression of official hostility to the religion practiced by a  billion people? 

If there is any fixed star in our constitutional constellation, it is that no   official, high or petty, can prescribe what shall be orthodox in  politics, nationalism, religion or other matters of opinion   . . . ." The   plaintiffs have alleged a case where the fixed star has been   obscured and an official orthodoxy prescribed. 

My  take on this.. 

 The key principle here is that no law was created that established or prohibited religion in the case of the SF council. 

The dissenting view, while well written, compares the attack on one aspect of the Christian faith (ex gay ministries) with an attack on an entire religion (Islam) 

There is something that need to be pointed out here.  Ex gay ministries use reparative therapy.  Reparative therapy or conversion therapy is NOT a biblical practice.  This is not to say that one cannot use it.  It is simply saying that the bible cannot be used to defend it.  Changing one’s orientation is NOT a biblical guarantee though I do   believe there are some rare cases where someone may be   confused about their orientation due to sexual abuse or other   trauma. 

Therefore the gospel of Jesus Christ is NOT being attacked here.    This is not the criminalization of Christianity.  Only a particular   ideology of orientation change is being challenged.  And it is being   challenged by private letter and by non-binding resolution, not by a   law. 

I would urge you to read the entire court opinion so that you can form   your own opinion 

Other References 

http://en.wikipedia.org/wiki/American_Family_Association_v.  _City_and_County_of_San_Francisco 

http://www.catholicculture.org/news/features/index.cfm?recnum=13343 

Court documents.. 

http://www.ca9.uscourts.gov/ca9/newopinions.  nsf/45E0EB82A5FE0A4088256B42007A7002/$file/0016415.pdf?  openelement 

from 2007… 

http://web.archive.org/web/20070403210710/http://www.afa.  net/clp/bfcases.asp 

  Two of the bridges-across discussions on this... (must be logged in   to view) 

  http://www.bridges-across.org/phpBBarchive/viewtopic.php?  t=3005&postdays=0&postorder=asc&highlight=san+francisco+afa+l  aw+suit& 

  http://www.bridges-across.org/phpBBarchive/viewtopic.php?  t=4928&postdays=0&postorder=asc&

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