San Francisco Board of Supervisors Denounces The Vatican

Yes, you read that right.  Earlier this week the San Francisco Board of Supervisors issued a resolution denouncing the Vatican and its Congregation for the Doctrine of the Faith generally with regard to its teachings about homosexuality, and specifically about it's directive to the Archdiocese of San Francisco (among others) and Catholic Charities not to participate in adoption placements.  (I've included the full text of the resolution at the end of this entry.)  The directive was in response to legislation requiring that adoption services not discriminate against lesbian and gay applicants.

You've already seen my mixed thoughts about such anti-discrimination policies that don't allow exemptions for religious services providers.  I wish I could tell you that my opinion has solidified one way or the other, but it hasn't.  I'm still torn, and suspect I will be for some time.

What's interesting me here is the Supervisors' resolution itself.  The Vatican is a sovereign nation, and it's perfectly legitimate for a nation or one of its political subdivisions to denounce the conduct of a foreign state (which the Supervisors made clear it was doing in the second paragraph -- the first "whereas" clause -- of the resolution).  In that sense, what the Supervisors did was proper.  Where things get sketchy is that it's not just a nation -- it's also the center of a religious body:  is it proper for a government entity to officially denounce the teachings and directives of a particular religion, and the actions of its clergy?

I suspect the latter part of that question is easier to answer, at least in situations where the clergy are putting the health and/or safety of others at risk.  But teachings ... and if there is no actual health/safety risk ... are there Establishment Clause violations here?  The fact that I agree with most of what the Supervisors said doesn't change the fact that, as someone concerned with religious liberty, I might very well have a problem because the Supervisors are not only urging the the head of the Congregation for the Doctrine of the Faith -- clearly a religious office -- to withdraw his directive, but they are also explicitly encouraging the Archbishop and Catholic Charities to defy their religious leaders' teachings.

A few might argue that that that there's no meaningful distinction between a resolution condemning a church's purely theological claims/teachings/beliefs and one condemning particular religious practices.  Most, if not all, Religion Clause cases, however, are based on the premise that the state is not required to approve of, or legally permit, all religiously-based practices; polygamy springs to mind as an example.  At a certain point, however, a religious practice may be inextricably linked with a religion's theology.  Thus condeming the practice can be almost indistinguishable from condemning the doctrine.  (Condeming Catholic practices regarding the Holy Eucharist springs to mind as an example; one could argue that distributing the Eucharist, in light of the doctrine of Transubstantiation, promotes cannibalism.)

So -- would a theology-focused resolution be permissible if the government had a good, valid secular basis for its condemnation of the teaching/claim?  Various religious scholars have argued that the line between  the theological and secular is not always clear, and that it's almost always possible to come up with a secular reason to oppose a religious "truth" or practice.

There's a third way in which the resolution could be a violation of the Establishment Clause -- it attacks the Church's ecclesiology, i.e. the idea that all diocese, parishes and adherents should be in communion with the See of Rome.  This is the same issue that arose in Britain when the Tudors, as a matter of state policy, sought to attack the See of Rome's authority.

On the other hand, the actions being addressed are not those of individual Catholics but those of a Catholic social services agency.  It's not about sacraments or liturgy, but the provision of social services.  Does that make a difference to the Constitutionality of the Supervisors' resolution?

My impression is that the Supervisors didn't violate the Establishment Clause both because they're condemning a specific practice (discrimination in the provision of adoption services) not a belief, and because the practice is taking place in the provision of social services (a secular and state-affiliated social service). Eugene Volokh, of The Volokh Conspiracy agrees with me, but apparently the Thomas More Law Center, which the Religion Clause reports filed suit last week challenging the resolution, would disagree.

Putting the legal issues aside, though, is it appropriate for a political body to express hostility towards a specific religious viewpoint, as the Supervisors did in the fourth paragraph of the resolution?  To me it seems ... well, not in good taste, though that's neither a legal or moral opinion.  Perhaps it's a goose/gander thing -- I wouldn't want a political body criticizing my religion so I don't like to hear that sort of criticism of another religion.  I think it's more than that, though --I really don't think the government should take on the role of criticizing -- or endorsing -- anyone's religious beliefs. If they'd kept the focus on Catholic Charities, that might be okay; criticizing the Pope's VP for doctrinal affairs (so to speak) seems too close to criticizing the religion itself.  The fact that it's about gay adoption is irrelevant -- there's always a reason that seems "good" to someone.  Next time the reason might not seem as "acceptable."

RESOLUTION 060356

Resolution urging Cardinal William Levada, in his capacity has head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

WHEREAS, It is a 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; and

WHEREAS, The statements of Cardinal Levada and the Vatican that "Catholic agencies should not place children for adoption in homosexual households," and "Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children" are absolutely unacceptable to the citizenry of San Francisco; and,

WHEREAS, Such hateful and Discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and

WHEREAS, Same sex couples are just as qualified to be parents as are heterosexual couples; and

WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it Resolved, that the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

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