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The above information is gleaned from the 1999 AFA action alert http://www.afa.net/law/pr991006.htm (no longer active)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. ….
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
http://www.ca9.uscourts.gov/ca9/newopinions. nsf/45E0EB82A5FE0A4088256B42007A7002/$file/0016415.pdf? openelement
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&