Catholic League for Religious and Civil Rights v. City and County of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHOLIC LEAGUE FOR 
RELIGIOUS AND CIVIL RIGHTS;
RICHARD SONNENSHEIN; VALERIE
MEEHAN,
Plaintiffs-Appellants,
No. 06-17328
v.
CITY AND COUNTY OF SAN  D.C. No.
CV-06-02351-MHP
FRANCISCO; AARON PESKIN; TOM
OPINION
AMMIANO, in his official capacity
as a Supervisor, Board of
Supervisors, City and County of
San Francisco,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted
December 16, 2009—San Francisco, California
Filed October 22, 2010
Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,
Andrew J. Kleinfeld, Michael Daly Hawkins,
Sidney R. Thomas, Barry G. Silverman, Susan P. Graber,
M. Margaret McKeown, Richard R. Clifton, Jay S. Bybee
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Kleinfeld;
Concurrence by Judge Silverman;
Partial Concurrence and Partial Dissent by Judge Graber
17357
CATHOLIC LEAGUE v. SAN FRANCISCO 17361
COUNSEL
Robert Joseph Muise, Thomas More Law Center, Ann Arbor,
Michigan, for the appellants.
Vince Chhabria, Deputy City Attorney, San Francisco, Cali-
fornia, for the appellees.
Michael Newdow, Sacramento, California, for amicus curiae
Michael Newdow.
Bridget Jeanne Wilson, Rosenstein, Wilson & Dean, P.L.C.,
San Diego, California, for amicus curiae DignityUSA.
Erwin Chemerinsky, University of California, Irvine, Califor-
nia, for amicus curiae Law Professors Alan Brownstein, Jor-
dan Budd, and Erwin Chemerinsky.
David Blair-Loy, ACLU Foundation of San Diego & Imperial
Counties, San Diego, California, for amicus curiae ACLU of
San Diego & Imperial Counties.
OPINION
KLEINFELD, Circuit Judge:
A majority of the court has concluded that the plaintiffs
have standing. A separate majority, for differing reasons,
affirm the district court’s dismissal of the plaintiffs’ claim.
Parts I and II of this opinion are joined by Judges
THOMAS, SILVERMAN, CLIFTON, BYBEE, and IKUTA.
17362 CATHOLIC LEAGUE v. SAN FRANCISCO
Part III of this opinion, addressing the merits of the plaintiffs’
claim, is a dissent, joined by Judges BYBEE and IKUTA.
Five of us, including Chief Judge KOZINSKI and Judges
RYMER, HAWKINS, and McKEOWN, conclude that the
plaintiffs have no standing, as set forth in Judge GRABER’s
opinion. Three of us, including Judges THOMAS and CLIF-
TON, concur in the judgment, concluding that although the
plaintiffs do have standing, their claim fails on the merits, as
set forth in Judge SILVERMAN’s opinion.
I. Facts1
We address whether Catholics and a Catholic advocacy
group in San Francisco may sue the City on account of an
official resolution denouncing their church and doctrines of
their religion. They may.
Pope Paul III established the Congregation for the Doctrine
of the Faith a half millennium ago.2 It safeguards and pro-
motes Catholic doctrine on faith and morals. In 2003, the
Congregation addressed homosexual marriage and adoption,
concluding that both were immoral, and that it was the moral
duty of Catholics to oppose both. To carry out this doctrinal
decision, Cardinal William Joseph Levada directed the Arch-
diocese of San Francisco that Catholic agencies should not
place children for adoption in homosexual households.
San Francisco immediately responded with official hostil-
ity. The San Francisco Board of Supervisors adopted the reso-
lution giving rise to this lawsuit. The resolution urges the
1
Because the complaint was dismissed under Federal Rule of Civil Pro-
cedure 12(b)(6) for failure to state a claim on which relief could be
granted, we take the factual allegations from the complaint to determine
whether, if proved, they would establish a claim. Sacks v. Office of For-
eign Assets Control, 466 F.3d 764, 771 (9th Cir. 2006). We therefore state
the facts as pleaded.
2
1542, 468 years ago.
CATHOLIC LEAGUE v. SAN FRANCISCO 17363
Cardinal to withdraw his instructions; denounces the Cardi-
nal’s directive as “meddl[ing]” by a “foreign country”; calls
it “hateful,” “insulting,” and “callous”; and urges the local
archbishop and Catholic Charities to “defy” the Cardinal’s
instructions. Here is Resolution 168-06 in full:
Resolution urging Cardinal William Levada, in
his capacity as 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 adop-
tion with homosexual households.
WHEREAS, It is an insult to all San Fran-
ciscans when a foreign country, like the
Vatican, meddles with and attempts to neg-
atively 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 per-
sons 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 discrimina-
tory rhetoric is both insulting and callous,
and shows a level of insensitivity and igno-
rance which has seldom been encountered
by this Board of Supervisors; and
17364 CATHOLIC LEAGUE v. SAN FRANCISCO
WHEREAS, Same-sex couples are just as
qualified to be parents as are heterosexual
couples; and
WHEREAS, Cardinal Levada is a decid-
edly unqualified representative of his for-
mer 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 Cath-
olic Charities of the Archdiocese of San
Francisco to defy all discriminatory direc-
tives of Cardinal Levada; now, therefore, be
it
RESOLVED, That the Board of Supervi-
sors 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 Fran-
cisco stop placing children in need of adop-
tion with homosexual households.3
Plaintiffs sued the City, claiming that this official govern-
ment resolution violates the Establishment Clause. The dis-
trict court dismissed their lawsuit for failure to state a claim
upon which relief could be granted, and we initially affirmed.4
3
S.F. Res. No. 168-06 (Mar. 21, 2006), available at http://
www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions06/r0168-06.pdf.
4
Catholic League for Religious and Civil Rights v. San Francisco, 567
F.3d 595 (9th Cir. 2009), reh’g en banc granted 586 F.3d 1166 (9th Cir.
2009).
CATHOLIC LEAGUE v. SAN FRANCISCO 17365
We then voted to rehear the case en banc, and now affirm the
district court’s dismissal on differing grounds.
II. Standing
The complaint alleges that plaintiffs are a Catholic civil
rights organization and two devout Catholics who live in San
Francisco. They aver that the resolution conveys a govern-
ment message of disapproval and hostility toward their reli-
gious beliefs. It “sends a clear message,” they plead, “that
they are outsiders, not full members of the political communi-
ty.” They allege that they have been injured by “misuse of the
instruments of government to criticize, demean and attack
their religion and religious beliefs, thereby chilling their
access to the government.” The individual plaintiffs aver that
they “will curtail their activities to lessen their contact” with
the city and county government, and the two members of the
Board of Supervisors sued because of the resolution.
After raising the question of standing sua sponte, we asked
the parties for letter briefs addressing it. The City and County
conceded standing, arguing that “the individual plaintiffs have
successfully pleaded standing, having alleged that they are
members of the community who have had contact with the
resolution and have suffered spiritual harm as a result.” Were
the result otherwise, the municipality concedes, a resolution
declaring Catholicism to be the official religion of the munici-
pality would be effectively unchallengeable. The municipality
also concedes that the Catholic League has “associational
standing.”
“At bottom, ‘the gist of the question of standing’ is whether
petitioners have ‘such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination.’ ”5 Had a Protestant in Pasa-
5
See Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (quoting Baker
v. Carr, 369 U.S. 186, 204 (1962)).
17366 CATHOLIC LEAGUE v. SAN FRANCISCO
dena brought this suit, he would not have had standing. Cath-
olics in San Francisco, on the other hand, have sufficient
interest, so that well-established standing doctrine entitles
them to litigate whether an anti-Catholic resolution violates
the Establishment Clause. Standing, or the lack of it, may be
intertwined with whether the complaint states a claim upon
which relief can be granted, but it is not the same thing.6
Standing is not about who wins the lawsuit; it is about who
is allowed to have their case heard in court. It would be outra-
geous if the government of San Francisco could condemn the
religion of its Catholic citizens, yet those citizens could not
defend themselves in court against their government’s prefer-
ment of other religious views.
Nevertheless, some of us have dissented on standing, so we
address the issue. The standing question, in plain English, is
whether adherents to a religion have standing to challenge an
official condemnation by their government of their religious
views, and official urging by their government that their local
religious representative defy their church. Their “personal
stake” assures the “concrete adverseness” required. “Endorse-
ment sends a message to nonadherents that they are outsiders,
not full members of the political community, and an accompa-
nying message to adherents that they are insiders, favored
members of the political community. Disapproval sends the
opposite message.”7 Plaintiffs aver that not only does the reso-
lution make them feel like second-class citizens, but that their
participation in the political community will be chilled by the
City’s hostility to their church and their religion.
[1] The constitutional requirement of standing has three
elements: (1) the plaintiff must have suffered an injury-in-fact
6
Cf. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010);
Arbaugh v. Y & H Corp., 546 U.S. 500, 511-12 (2006).
7
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concur-
ring); see also Cnty. of Allegheny v. ACLU, 492 U.S. 573, 595 (1989)
(adopting Justice O’Connor’s rationale in Lynch).
CATHOLIC LEAGUE v. SAN FRANCISCO 17367
— that is, a concrete and particularized invasion of a legally
protected interest that is actual or imminent, not conjectural
or hypothetical; (2) the injury must be causally connected —
that is, fairly traceable — to the challenged action of the
defendant and not the result of the independent action of a
third party not before the court; and (3) it must be likely and
not merely speculative that the injury will be redressed by a
favorable decision by the court.8 “The concept of a ‘concrete’
injury is particularly elusive in the Establishment Clause con-
text . . . because the Establishment Clause is primarily aimed
at protecting non-economic interests of a spiritual, as opposed
to a physical or pecuniary, nature.”9
It is, of course, incumbent upon the courts to apply standing
doctrine neutrally, so that it does not become a vehicle for
allowing claims by favored litigants and disallowing disfa-
vored claimants from even getting their claims considered.
Without neutrality, the courts themselves can become acces-
sories to unconstitutional endorsement or disparagement.
Standing is emphatically not a doctrine for shutting the court-
house door to those whose causes we do not like. Nor can
standing analysis, which prevents a claim from being adjudi-
cated for lack of jurisdiction, be used to disguise merits analy-
sis, which determines whether a claim is one for which relief
can be granted if factually true.
[2] Standing was adequate for jurisdiction in Establishment
Clause cases in the Supreme Court in the following contexts:
prayer at a football game,10 a crèche in a county courthouse11
or public park,12 the Ten Commandments displayed on the
8
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Valley
Forge Christian Coll. v. Ams. United for Separation of Church and State,
Inc., 454 U.S. 464, 475-76 (1982).
9
Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007).
10
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313-14 (2000).
11
Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989).
12
Lynch v. Donnelly, 465 U.S. 668 (1984).
17368 CATHOLIC LEAGUE v. SAN FRANCISCO
grounds of a state capitol13 or at a courthouse,14 a cross display
at a national park,15 school prayer,16 a moment of silence at
school,17 Bible reading at public school,18 and a religious invo-
cation at a graduation.19 No one was made to pray, or to pray
in someone else’s church, or to support someone else’s
church, or limited in how they prayed on their own, or made
to worship, or prohibited from worshiping, in any of these
cases. The Court treated standing (and therefore the concrete-
ness element of standing) as sufficient in all of these cases,
even though nothing was affected but the religious or irreli-
gious sentiments of the plaintiffs.20
13
Van Orden v. Perry, 545 U.S. 677 (2005).
14
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005).
15
Salazar v. Buono, 130 S. Ct. 1803 (2010).
16
Engel v. Vitale, 370 U.S. 421 (1962).
17
Wallace v. Jaffree, 472 U.S. 38 (1985).
18
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).
19
Lee v. Weisman, 505 U.S. 577 (1992).
20
Judge Graber’s argument appears to be that since this case does not
involve a challenge to a religious display on government property, a reli-
gious exercise at a public ceremony, or a “specific governmental policy or
statutory provision,” there is no standing. There is not a single standing
case that limits Establishment Clause standing to these three categories.
Most of the cases fall into them because American governments have typi-
cally been sympathetic to religion rather than hostile to it. Establishment
Clause challenges, because of this typical governmental sympathy for reli-
gion, tend to challenge governmental endorsement. The Supreme Court,
though, has carefully linked rejection of endorsements to rejection of con-
demnations in virtually every discussion of the subject. See, e.g., Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532
(1992) (“[T]he First Amendment forbids an official purpose to disapprove
of a particular religion . . . .”). Moreover, an official resolution of the City
of San Francisco is indeed a “case[ ] involving a specific governmental
policy,” condemning, in this case, the Catholic Church. The distinction
Judge Graber draws between a governmental display and a government’s
official resolution cuts against her view. A symbol such as a crèche on the
city hall lawn is ambiguous. It may mean that the government endorses
Christianity, or it may mean that the government merely wishes to show
respect and friendship for Christianity. The resolution at issue, like a sym-
CATHOLIC LEAGUE v. SAN FRANCISCO 17369
[3] We have concluded that standing was established in
cases involving displaying crosses on government land,21
removing a cross from a city seal,22 disciplining physicians
who performed surgery without blood transfusions in a law-
suit by Jehovah’s Witnesses,23 including the words “under
God” in the Pledge of Allegiance,24 and contracting with the
Boy Scouts to administer a city recreational facility.25 The
harm to the plaintiffs in those cases was spiritual or psycho-
logical harm.26 That is the harm plaintiffs claim here. If we
bol, conveys a message, but unlike a symbol, the message is unambiguous.
Judge Graber’s opinion would ignore San Francisco’s plain denunciation
of the Catholic Church because it is unaccompanied by symbolic public
art. The opinion also ignores binding Supreme Court precedent on govern-
ment speech: “The Free Speech Clause restricts government regulation of
private speech; it does not regulate government speech. . . . This does not
mean that there are no restraints on government speech. For example, gov-
ernment speech must comport with the Establishment Clause.” Pleasant
Grove City v. Summum, 129 S. Ct. 1125, 1131-32 (2009).
21
Buono v. Norton, 371 F.3d 543 (9th Cir. 2004); Separation of Church
& State Comm. v. City of Eugene, 93 F.3d 617, 619 n.2 (9th Cir. 1996)
(per curiam).
22
Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007).
23
Graham v. Deukmejian, 713 F.2d 518, 519 (9th Cir. 1983).
24
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010).
25
Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir. 2008).
26
Judge Graber cites many, many standing cases and faults us for not
discussing all of them to the same extent. The reason why all need not be
patiently explicated is that not a single one of Judge Graber’s cited cases
involves a government condemnation of a particular church or religion.
The attempt to tease out of the rhetoric explaining the holdings in other,
quite different, factual circumstances fails because the language in every
case explained a different result. True, there are so many Establishment
Clause standing cases that the language (as opposed to the holdings) in
some furnishes ammunition for Judge Graber’s view. Newdow v. LeFevre
upholds standing to challenge federal statutes requiring “In God We
Trust” on currency, but not the federal statute making “In God We Trust”
the national motto. 598 F.3d 638, 642 (9th Cir. 2010). Newdow v. Rio
Linda Union School District has dicta that a parent and child lacked stand-
17370 CATHOLIC LEAGUE v. SAN FRANCISCO
conclude that plaintiffs in the case before us have standing,
we need not decide whether those cases retain their vitality or
are overruled, because our conclusion would be consistent
with them. But if we reject standing for plaintiffs in this case,
then those cases must somehow be distinguished convincingly
(a difficult task), or overruled.
The leading Supreme Court Establishment Clause case for
the absence of Establishment Clause standing is Valley Forge
Christian College v. Americans United for Separation of
Church and State.27 The government had conveyed surplus
property to a religious college, for free, subject to a condition
subsequent requiring use for thirty years solely as an educa-
tional institution.28 The plaintiffs sued because the college was
avowedly and plainly a sectarian Christian institution that
would operate for sectarian Christian purposes. The Court
held that Americans United lacked standing, not only for a
ing to challenge the federal statute adding “under God” to the pledge of
allegiance, but holds that they had standing to challenge the California law
requiring the pledge’s recitation in the schools even though no child was
required to recite it. 597 F.3d 1007, 1016 (9th Cir. 2010). Judge Graber’s
stretch from federal statutes regarding traditional patriotic formulas that
include vague and general religiosity, to a local ordinance condemning the
church and religious views of some of the municipality’s residents, takes
the explanatory language of these cases too far. Additionally, Judge Gra-
ber argues that a one-page Eighth Circuit per curiam opinion, Flora v.
White, is “indistinguishable” from this case. 692 F.2d 53 (8th Cir. 1982)
(per curiam). Hardly. The Eighth Circuit held that the plaintiffs lacked
standing to challenge a provision in the Arkansas Constitution making
atheists incapable of holding public office or to testify as a witness, where
the plaintiffs had no plans to do either. Id. at 54. Their being offended
because they were atheists was analogized to the plaintiffs offended but
not affected in Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464 (1982). See Flora, 692 F.2d
at 54. Unlike either of these cases, the plaintiffs here are not suing on the
mere principle of disagreeing with San Francisco, but because of that
city’s direct attack and disparagement of their religion.
27
454 U.S. 464 (1982).
28
Id. at 468.
CATHOLIC LEAGUE v. SAN FRANCISCO 17371
taxpayers suit under Flast v. Cohen,29 but also as individuals
and a group affected by government action respecting an
establishment of religion.30 The reason they lacked the con-
crete injury necessary for standing was that, regardless of
whether the government action violated the Establishment
Clause, they had no concrete injury beyond the offense to
their desire to have the government conform to the Constitu-
tion.31 “They fail[ed] to identify any personal injury suffered
by them as a consequence of the alleged constitutional error,
other than the psychological consequence presumably pro-
duced by observation of conduct with which one disagrees.”32
These plaintiffs were like the Protestants in Pasadena suing
San Francisco over its anti-Catholic resolution.
[4] One has to read the whole Valley Forge sentence
quoted, and not stop at “psychological consequence,” to
understand it. A “psychological consequence” does not suf-
fice as concrete harm where it is produced merely by “obser-
vation of conduct with which one disagrees.” But it does
constitute concrete harm where the “psychological conse-
quence” is produced by government condemnation of one’s
own religion or endorsement of another’s in one’s own com-
munity. For example, in the school prayer and football game
cases, nothing bad happened to the students except a psycho-
logical feeling of being excluded. Likewise in the crèche and
Ten Commandments cases, nothing happened to the non-
Christians, or to people who disagreed with the Ten Com-
mandments or their religious basis, except psychological con-
sequences. What distinguishes the cases is that in Valley
Forge, the psychological consequence was merely disagree-
ment with the government, but in the others, for which the
Court identified a sufficiently concrete injury, the psychologi-
29
392 U.S. 83 (1968).
30
Valley Forge, 454 U.S. at 479-80, 485-86.
31
Id. at 485-86.
32
Id. at 485.
17372 CATHOLIC LEAGUE v. SAN FRANCISCO
cal consequence was exclusion or denigration on a religious
basis within the political community.33
[5] Plaintiffs allege that they are directly stigmatized by
San Francisco’s actions. They allege that the stigmatizing res-
olution leaves them feeling like second-class citizens of the
San Francisco political community, and expresses to the citi-
zenry of San Francisco that they are. The cause of the plain-
33
Judge Graber argues that standing is appropriate in the religious dis-
play cases, but not this case of condemnation of a religion, because those
who challenge a religious display have frequent or regular contact with it
and are harmed because they cannot freely use public areas. This distinc-
tion cuts the other way, however, as explained above. Living in a city that
condemns one’s religion is a daily experience of contact with a govern-
ment that officially condemns one’s religion. A plaintiff’s having visual
contact with a cross is immaterial, and would not raise a question if it were
merely in a painting in the city art museum, because a reasonable person
would not infer a government’s position on a religion from the painting.
The “contact” that matters is in the mind — acquisition of the knowledge
that the government endorses (or condemns) a religion. An official gov-
ernment condemnation of a religion unambiguously and inescapably con-
veys knowledge of that condemnation. Judge Graber’s notion that the
public display cases involve restriction on movement relies on a false fac-
tual proposition. In none of the religious display cases is there any law
prohibiting free use of public areas by those who are not adherents to the
religion. The nonadherents simply feel uncomfortable in the presence of
a display endorsing someone else’s religion. There is no principled basis
for assiduously addressing that discomfort, yet treating as trivial the dis-
comfort of those whose religion is condemned by their government. The
plaintiffs are as affected by what the San Francisco government has done
— condemning their religion — as an atheist would be if the San Fran-
cisco government erected a giant cross on top of its biggest hill, on which
he happened to live and which he would be walking past on the way to
work. The government cannot constitutionally endorse a religion by erect-
ing the cross; nor, analogously, can it condemn religion by erecting a
gigantic sign on city hall of a cross with a line through it: a “no Christiani-
ty” sign with the design of a “no smoking” sign. The Board’s resolution
accomplishes the same thing as the aforementioned sign, but even more
plainly and unambiguously. Symbols endorsed or adopted by a govern-
ment are often ambiguous, but the words in this resolution are not. Conse-
quently, this is an easier and more direct case for standing than any of the
religious-symbolism cases cited by Judge Graber.
CATHOLIC LEAGUE v. SAN FRANCISCO 17373
tiffs’ injury here is not speculative: it is the resolution itself.
Plaintiffs allege that their “Sacred Scripture” “presents homo-
sexual acts as acts of grave depravity,” and that “Catholic tra-
dition has always declared that homosexual acts are
intrinsically disordered.” Plaintiffs believe as part of their reli-
gion that “Catholics have an obligation to state clearly the
immoral nature of homosexual unions so as to safeguard pub-
lic morality, and above all, to avoid exposing young people to
erroneous ideas about sexuality and marriage. Clear and
emphatic opposition to homosexual unions is a duty of all
Catholics.” San Francisco directly disparages these religious
beliefs through its resolution by calling them “hateful and dis-
criminatory,” “insulting and callous,” and “insensitiv[e] and
ignoran[t].”
[6] The concreteness of injury is sufficiently pleaded here
because plaintiffs aver that: (1) they live in San Francisco; (2)
they are Catholics; (3) they have come in contact with the res-
olution; (4) the resolution conveys a government message of
disapproval and hostility toward their religious beliefs; that
(5) “sends a clear message” “that they are outsiders, not full
members of the political community”; (6) “thereby chilling
their access to the government”; and (7) forcing them to cur-
tail their political activities to lessen their contact with defen-
dants.
[7] Standing also requires redressability, that is, that it is
“likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.”34 Plaintiffs seek a
declaratory judgment that the resolution is unconstitutional,
and nominal damages for the violation of their rights. By
declaring the resolution unconstitutional, the official act of the
government becomes null and void.35 Even more important, a
34
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal
quotation marks omitted).
35
See, e.g., Powell v. McCormack, 395 U.S. 486, 506 (1969)
(“ ‘Especially is it competent and proper for this court to consider whether
17374 CATHOLIC LEAGUE v. SAN FRANCISCO
declaratory judgment would communicate to the people of the
plaintiffs’ community that their government is constitutionally
prohibited from condemning the plaintiffs’ religion, and that
any such condemnation is itself to be condemned. This would
reaffirm the fundamental principle that
[t]he basic purpose of the religion clause of the First
Amendment is to promote and assure the fullest pos-
sible scope of religious liberty and tolerance for all
and to nurture the conditions which secure the best
hope of attainment of that end.
The fullest realization of true religious liberty
requires that government neither engage in nor com-
pel religious practices, that it effect no favoritism
among sects or between religion and nonreligion,
and that it work deterrence of no religious belief.36
III. Merits
I dissent with regard to the merits of the Board’s resolution.
“The Establishment Clause prohibits government from
making adherence to a religion relevant in any way to a per-
son’s standing in the political community.”37 Government
its (the legislature’s) proceedings are in conformity with the Constitution
and laws, because, living under a written constitution, no branch or depart-
ment of the government is supreme; and it is the province and duty of the
judicial department to determine in cases regularly brought before them,
whether the powers of any branch of the government, and even those of
the legislature in the enactment of laws, have been exercised in conformity
to the Constitution; and if they have not, to treat their acts as null and
void.’ ” (quoting “language which time has not dimmed” from Kilbourn
v. Thompson, 103 U.S. 168, 199 (1880))).
36
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305 (1963)
(Goldberg, J., concurring) (emphasis added), quoted with approval in Lar-
son v. Valente, 456 U.S. 228, 246 (1982).
37
Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concur-
ring); see also Cnty. of Allegheny v. ACLU, 492 U.S. 573, 595 (1989)
(adopting Justice O’Connor’s rationale in Lynch).
CATHOLIC LEAGUE v. SAN FRANCISCO 17375
runs afoul of the Establishment Clause through “endorsement
or disapproval of religion. Endorsement sends a message to
nonadherents that they are outsiders, not full members of the
political community, and an accompanying message to adher-
ents that they are insiders, favored members of the political
community. Disapproval sends the opposite message.”38
Plaintiffs complain here of just such governmental disparage-
ment of their religion.
We have not found another Establishment Clause case
brought by people whose religion was directly condemned by
their government. Though there have been lapses, as with
Mormons and Jehovah’s Witnesses, tradition even more than
law has generally restrained our national, state, and local gov-
ernments from expressing condemnation or disrespect for
anyone’s religion. George Washington set the tone for our
governmental relationship to religion even before the First
Amendment was ratified, in his 1790 expression of goodwill
to the Hebrew Congregation in Newport, Rhode Island:
All possess alike liberty of conscience and immuni-
ties of citizenship. It is now no more that toleration
is spoken of, as if it was by the indulgence of one
class of people, that another enjoyed the exercise of
their inherent natural rights. For happily the govern-
ment of the United States, which gives to bigotry no
sanction, to persecution no assistance, requires only
that they who live under its protection should
demean themselves as good citizens, in giving it on
all occasions their effectual support.39
The only recent Court decision on government hostility to a
particular religion that we have found is the free exercise
decision of Church of the Lukumi Babalu Aye, Inc. v. City of
38
Lynch, 465 U.S. at 688 (O’Connor, J., concurring).
39
Critical Documents of Jewish History 3 (Ronald H. Isaacs & Kerry M.
Olitzky eds. 1995).
17376 CATHOLIC LEAGUE v. SAN FRANCISCO
Hialeah, where the Court notes that its Establishment Clause
cases “have often stated the principle that the First Amend-
ment forbids an official purpose to disapprove of a particular
religion or of religion in general.”40 That case, along with
many other opinions of the Court, stands for the principle that
government has no legitimate role under the Establishment
Clause in judging the religious beliefs of the people — either
by praise or denunciation.41 This principle requires that we
nullify San Francisco’s governmental condemnation of Catho-
lic doctrine.
Though much criticized,42 Lemon v. Kurtzman43 remains
40
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532 (1992) (citing six cases).
41
See, e.g., Lynch, 465 U.S. at 673 (“Nor does the Constitution require
complete separation of church and state; it affirmatively mandates accom-
modation, not merely tolerance, of all religions, and forbids hostility
toward any.” (emphasis added)).
42
See, e.g., Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512
U.S. 687, 720 (1994) (O’Connor, J., concurring) (warning that “the bad
test may drive out the good. Rather than taking the opportunity to derive
narrower, more precise tests from the case law, courts tend to continually
try to patch up the broad test, making it more and more amorphous and
distorted. This, I am afraid, has happened with Lemon”); Lamb’s Chapel
v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia,
J., concurring) (lamenting that “[l]ike some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad, after being
repeatedly killed and buried, Lemon stalks our Establishment Clause juris-
prudence once again, frightening the little children and school attorneys
. . . .” And detailing how “[o]ver the years . . . no fewer than five of the
[then] sitting Justices have, in their own opinions, personally driven pen-
cils through the creature’s heart (the author of today’s opinion repeatedly),
and a sixth has joined an opinion doing so”); Cnty. of Allegheny v. ACLU,
492 U.S. 573, 669 (1989) (Kennedy, concurring in part) (expressing his
view “that the endorsement test is flawed in its fundamentals and unwork-
able in practice”); Comm. for Pub. Ed. v. Regan, 444 U.S. 646, 671 (1980)
(Stevens, J. dissenting) (explaining that the Court should abandon “the sis-
yphean task of trying to patch together the ‘blurred, indistinct, and vari-
able barrier’ described in Lemon”)
43
403 U.S. 602 (1971).
CATHOLIC LEAGUE v. SAN FRANCISCO 17377
controlling on Establishment Clause violations, subject to
subsequent emendations as the “endorsement” and “neutrali-
ty” principles have developed.44 Under Lemon, government
action must have a secular purpose, “its principal or primary
effect must be one that neither advances nor inhibits religion,”
and it “must not foster excessive entanglement with religion.”45
The municipality argues that its purpose was not to con-
demn Catholicism, but rather to foster equal treatment of peo-
ple who are gay and lesbian. That is indeed a legitimate
purpose, but we would not have this case before us if that
were all that the resolution said. The San Francisco govern-
ment would face no colorable Establishment Clause challenge
had they limited their resolution to its fourth “whereas,” that
“[s]ame sex couples are just as qualified to be parents as het-
erosexual couples.” San Francisco is entitled to take that posi-
tion and express it even though Catholics may disagree as a
matter of religious faith. But the title paragraph, the other five
“whereas” clauses, and the “resolved” language are all about
the Catholic Church, not same-sex couples.
The municipality argues that any reasonable recipient of its
message would also be familiar with its forty-one other reso-
lutions condemning discrimination against homosexuals and
anti-homosexual speech in Russia,46 Germany,47 Florida,48 Ala-
44
See Lamb’s Chapel, 508 U.S. at 395 n.7 (stating, in response to Justice
Scalia’s assertion that Lemon was a “ghoul in a late-night horror movie,”
that “there is a proper way to inter an established decision and Lemon,
however frightening it might be to some, has not been overruled”).
45
Lemon, 403 U.S. at 612-13.
46
S.F. Res. No. 364-06 (June 13, 2006), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions06/r0364-
06.pdf.
47
S.F. Res. No. 220-00 (Mar. 13, 2000), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions00/r0220-
00.pdf.
48
S.F. Res. No. 73-05 (Jan. 25, 2005), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions05/r0073-
05.pdf.
17378 CATHOLIC LEAGUE v. SAN FRANCISCO
bama,49 by a senator from another state,50 by various celebrities,51
and by a football team.52 The municipality claims that these
show that its concern is homosexuals, not Catholicism, and
that any inference of anti-Catholicism is decisively rebutted
because anyone would know that the councilman who intro-
duced the resolution is Catholic. The argument seems bizarre.
Why would anyone know the personal religious faith of each
city councilman? Or be familiar with all the resolutions of
their municipal government, not just the one attacking their
church? And why should the underlying secular motive infer-
able from other government actions cure an expressed anti-
Catholic purpose in the action challenged? Regardless of what
the underlying motivation may be for the various individuals
on the city council, a court must, in deciding whether a gov-
ernment action violates the Establishment Clause, read the
words of the government enactment.53 If the zoning board pro-
49
S.F. Res. No. 234-99; see Am. Family Ass’n v. City & Cnty. of San
Francisco, 277 F.3d 1114, 1119 (9th Cir. 2002).
50
S.F. Res. No. 308-03 (May 6, 2003), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions03/r0308-
03.pdf.
51
See, e.g., S.F. Res. No. 199-00 (Mar. 6, 2000), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions00/r0199-
00.pdf.
52
S.F. Res. No. 454-05 (June 14, 2005), available at
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions05/r0454-
05.pdf.
53
Judge Silverman suggests that the resolution should be read in the
context of San Francisco’s history of promoting gay rights and supporting
the rights of same-sex couples. A strong city policy of favoring gay rights,
though, does not justify official attacks on religion. The San Francisco
government used the group version of an ad hominem argument. Instead
of a resolution simply favoring same-sex adoption and criticizing the argu-
ments against it, the resolution attacked the religion of those against it. A
secular motive for smearing anti-Catholic graffiti on a cathedral would not
erase the anti-Catholic message conveyed. The Board of Supervisors went
out of its way to characterize Catholicism as coming from a “foreign coun-
try[:] the Vatican,” its teachings as “hateful,” and implicitly compared
modern-day Catholic officials to the Inquisition. These are traditional anti-
CATHOLIC LEAGUE v. SAN FRANCISCO 17379
hibited all synagogues and mosques from operating within the
city limits, the action would not be saved even by a legislative
history that persuasively demonstrated a secular motive of
avoiding strife between Jews and Muslims. “[O]fficial objec-
tive emerges from readily discoverable fact, without any judi-
cial psychoanalysis of a drafter’s heart of hearts.”54 “[T]he
absence of a malevolent motive does not convert a facially
discriminatory policy into a neutral policy with a discrimina-
tory effect.”55
The resolution also must satisfy the second prong of the
Lemon test, that its “principal or primary effect must be one
that neither advances nor inhibits religion . . . .”56 Here, the
argument seems to be that the resolution has no effect at all,
let alone a “principal or primary” one, because it is merely an
ineffectual expression of the Board of Supervisors’ sentiment
and not a compulsory regulation of behavior. That argument
cannot stand because of the extensive Establishment Clause
jurisprudence where government, arguably with similar inef-
fectuality, endorses religion, and the mere endorsement is
deemed unconstitutional.57
Catholic tropes employed for centuries by anti-Catholic bigots. See, e.g.,
Thomas E. Watson, Rome’s Law, Or Our’s — Which?, The Jeffersonian,
Sept. 7, 1916, at 4 (using the same rhetorical device as the Board of Super-
visors, Tom Watson, the Populist supporter of the Ku Klux Klan, charac-
terized Catholic religious convictions as “laws of [a] foreigner [that] are
absolutely antagonistic to ours. . . . The Pope’s is the only church that is
foreign; the only church whose laws antagonize democracy and republican
institutions . . . ; the only church whose theology teaches murder, and
whose literature is so obscene that she savagely prosecutes [those] who
expose it”).
54
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862 (2005).
55
Int’l Union, United Auto., Aerospace & Agric. Implement Workers of
Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991).
56
Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
57
See, e.g., McCreary Cnty., 545 U.S. at 844 (display of Ten Command-
ments); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (prayer
17380 CATHOLIC LEAGUE v. SAN FRANCISCO
The “effect” prong of the Lemon test “asks whether, irre-
spective of the government’s actual purpose, the practice
under review in fact conveys a message of endorsement or disap-
proval.”58 That is to say, a mere message of disapproval, even
in the absence of any coercion, suffices for an Establishment
Clause violation under Lemon. If the government action con-
veys a message of disapproval of religion, then it violates the
Establishment Clause.59 The “message” in the resolution,
unlike, say, the message that might be inferred from some
symbolic display, is explicit: a Catholic doctrine duly commu-
nicated by the part of the Catholic church in charge of clarify-
ing doctrine is “hateful,” “defamatory,” “insulting,” “callous,”
and “discriminatory,” showing “insensitivity and ignorance,”
the Catholic Church is a hateful foreign meddler in San Fran-
cisco’s affairs, the Catholic Church ought to “withdraw” its
religious directive, and the local archbishop should defy his
superior’s directive. This is indeed a “message of . . . disap-
proval.” And that is all it takes for it to be unconstitutional.60
before football game); Lee v. Weisman, 505 U.S. 577 (1992) (religious
invocation at school graduation); Cnty. of Allegheny v. ACLU, 492 U.S.
573 (1989) (crèche display at a courthouse); Wallace v. Jaffree, 472 U.S.
38 (1985) (moment of silence or voluntary prayer at school); Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203 (1963) (Bible reading at school);
Engel v. Vitale, 370 U.S. 421 (1962) (prayer at school); Buono v. Norton,
371 F.3d 543 (9th Cir. 2004) (cross on public land); Separation of Church
& State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996) (same);
Graham v. Deukmejian, 713 F.2d 518 (9th Cir. 1983) (disciplining physi-
cians who performed surgery in accord with religious beliefs); see also
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1139 (2009) (Stevens,
J., concurring) (suggesting that even though government expression is not
impeded by the Free Speech Clause, “government speakers are bound by
the Constitution’s other proscriptions, including those supplied by the
Establishment and Equal Protection Clauses”).
58
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concur-
ring) (Justice O’Connor’s rationale was later adopted by the Court in Wal-
lace, 472 U.S. at 56).
59
Id.60
Id.CATHOLIC LEAGUE v. SAN FRANCISCO 17381
As for entanglement, the resolution explicitly entangles
itself in church governance. The City would entangle itself
with judicial hierarchy, albeit not unconstitutionally, by urg-
ing a district judge to defy the court of appeals. And San
Francisco entangles itself with the Catholic hierarchy when it
urges the local archbishop to defy the cardinal. It is a dramatic
entanglement to resolve that the Cardinal “as head of the Con-
gregation for the Doctrine of the Faith” should withdraw his
directive. The Catholic Church, like the myriad other religions
that have adherents in San Francisco, is entitled to develop
and propagate its faith without assistance and direction from
government.61 If the faith leads to actions contrary to San
Francisco policy, like not placing children for adoption with
homosexual couples, the city may abjure use of its institutions
to place children, but it may not entangle itself with develop-
ment of Catholic religious doctrine.62 The half-millennium-old
61
See Cnty. of Allegheny, 492 U.S. at 590 (“[T]oday [the Establishment
and Free Exercise Clauses] are recognized as guaranteeing religious lib-
erty and equality to the infidel, the atheist, or the adherent of a non-
Christian faith such as Islam or Judaism. It is settled law that no govern-
ment official in this Nation may violate these fundamental constitutional
rights regarding matters of conscience.” (internal quotation marks and
citation omitted)).
62
Though Henry II and Thomas Becket, as well as Henry VIII and
Thomas More, explored the consequences of governmental direction to
Church leaders and religious followers respecting their conformance with
their Church’s directives, we Americans, since long before Lemon, have
rejected what Madison called “intermeddl[ing]” in church affairs. Lemon,
403 U.S. at 635 (Douglas, J., concurring) (quoting James Madison, Memo-
rial and Remonstrance Against Religious Assessments para. 11 (1785));
see also James Madison, Address to the Convention of Virginia (June 12,
1788), reprinted in 3 The Debates in the Several State Conventions, On
the Adoption of the Federal Constitution, as Recommended by the General
Convention at Philadelphia, in 1787 330 (Jonathan Elliot ed., 1888)
(“There is not a shadow of right in the general government to intermeddle
with religion. Its least interference with it, would be a most flagrant usur-
pation.”). In contrast to such intermeddling, the high school case about
“Ave Maria” at graduation cited by Judge Silverman, Nurre v. Whitehead,
580 F.3d 1087 (9th Cir. 2009), did not involve any attack on religion, just
an avoidance of what might have appeared to be a governmental endorse-
ment of religion. Id. at 1098-99.
17382 CATHOLIC LEAGUE v. SAN FRANCISCO
Congregation for the Doctrine of the Faith is entitled, under
our Constitution, to develop religious doctrine free of govern-
mental interference.
Lemon requires government to satisfy all three prongs to
avoid an Establishment Clause violation.63 Even if we were to
conclude that San Francisco satisfied one or two of them, it
would not satisfy all three. “What is crucial is that a govern-
ment practice not have the effect of communicating a message
of government endorsement or disapproval of religion.”64
Messages of endorsement or disapproval “make religion rele-
vant, in reality or public perception, to status in the political
community.”65 It is an “established principle that the govern-
ment must pursue a course of complete neutrality toward reli-
gion.”66 The “[Establishment] Clause, at the very least,
prohibits government from appearing to take a position on
questions of religious belief or from ‘making adherence to a
religion relevant in any way to a person’s standing in the
political community.’ ”67
The Establishment Clause might arguably have been lim-
ited, long ago, to prohibiting something like the Church of
England, where taxes support the church and the government
appoints its head, the Archbishop of Canterbury. Or the clause
might have been limited to laws imposing fines for failure to
attend church at proper times.68 But it has not been so limited.
63
Edwards v. Aguillard, 482 U.S. 578, 583 (1987) (“State action vio-
lates the Establishment Clause if it fails to satisfy any of [the Lemon test]
prongs.”).
64
Lynch, 465 U.S. at 692 (O’Connor, J., concurring).
65
Id.66
Wallace v. Jaffree, 472 U.S. 38, 60 (1985).
67
Cnty. of Allegheny v. ACLU, 492 U.S. 573, 574 (1989) (quoting
Lynch, 465 U.S. at 687 (O’Connor, J., concurring)).
68
See, e.g., The Laws and Liberties of Massachusetts 20 (Max Farrand
ed., 1929) (1648) (requiring church attendance on the “Lords days” and
any other days “as are to be generally kept by the appointment of Authori-
tie,” with anyone who violated this law being required to “forfeit for his
absence from everie such publick meeting five shillings”).
CATHOLIC LEAGUE v. SAN FRANCISCO 17383
The Establishment Clause as it has developed may be violated
even by government action that is no more than expression of
a sentiment, as by displays of religious symbols on govern-
ment property. None of these violations compel anyone to do
anything or refrain from anything, but they are the usual sub-
jects of Establishment Clause prohibition. The Court has
assiduously avoided limiting its doctrines to endorsement, by
saying “endorsement or disapproval,”69 so disapproval is as
much a violation as endorsement. For the government to
resolve officially that “Catholic doctrine is wrong,” is as
plainly violative of the Establishment Clause as for the gov-
ernment to resolve that “Catholic doctrine is right.”
No practical or fair reading could construe the Establish-
ment Clause as prohibiting only government endorsement and
not government condemnation of religion. Though it is hard
to imagine that government condemnation of the Catholic
Church would generate a pogrom against Catholics as it might
at another time or for a religion with fewer and more defense-
less adherents, the risk of serious consequences cannot be disre-
garded.70 Vandals might be emboldened by knowledge that
their government agrees that the Catholic Church is hateful
and discriminatory. Parishioners might be concerned about
driving their car to Mass for fear that it might be keyed in the
parking lot. Zoning officials might be emboldened to deny
variances and building permits on grounds they might not
69
See Cnty. of Allegheny, 492 U.S. at 620; Sch. Dist. of Grand Rapids
v. Ball, 473 U.S. 373, 389 (1985); Wallace, 472 U.S. at 61.
70
San Francisco is quite a metropolitan city, with many people coming
from other countries than our own. Some of those countries persecute their
religious minorities — including Christians. See Lolong v. Gonzales, 400
F.3d 1215, 1217-18, 1221-22 (9th Cir. 2005) (describing how Christians
are a persecuted minority in Indonesia), rev’d, 484 F.3d 1173 (9th Cir.
2007) (en banc). An official resolution by a government in the United
States condemning a Christian religious denomination would not put
American Catholics in fear of a pogrom, but might put immigrants from
some other countries in fear of what a government hostile to their church
might someday do to them.
17384 CATHOLIC LEAGUE v. SAN FRANCISCO
apply to other churches. Catholic city employees might fear
for their promotions if they show too much religiosity, as by
coming to work on Ash Wednesday with ash crosses on their
foreheads. There are very good reasons why the Constitution
directs government to stay out of religious matters.
Our Founding Fathers were well aware of the strife in
Europe during the Thirty Years War, and in England in the
English Revolution, over religion. They put together a nation
of Protestants of various disagreeing sects, Catholics, and
Jews, by excluding government from religion. The exclusion
was not anticlerical, and did not invite government hostility
to any church. Our revolution, unlike the French, Mexican, or
Russian revolutions, had no element of anticlericalism. Our
Bill of Rights established freedom of religion, not hostility to
or establishment of any religion.
The very purpose of a Bill of Rights was to with-
draw certain subjects from the vicissitudes of politi-
cal controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts.
....
If there is any fixed star in our constitutional con-
stellation, it is that no official, high or petty, can pre-
scribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or
force citizens by word or act their faith therein.71
Yet the San Francisco Board of Supervisors took upon itself
authority to “prescribe what shall be orthodox” in Catholic
doctrine. Government cannot constitutionally prescribe a reli-
gious orthodoxy and condemn heresy on homosexuality, or
71
West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 642
(1942).
CATHOLIC LEAGUE v. SAN FRANCISCO 17385
anything else. “[N]either Pagan nor Mahometan, nor Jew,
ought to be excluded from the civil rights of the common-
wealth because of his religion.”72 America allows both loyalty
to faith and first-class citizenship.
IV. Conclusion
[8] Although three of us would reverse, a majority of this
court concludes that we should affirm, either on standing
grounds or on the merits. Accordingly, the judgment of the
district court is AFFIRMED.
SILVERMAN, Circuit Judge, with whom THOMAS and
CLIFTON, Circuit Judges, join, concurring:
I agree with Judge Kleinfeld that the plaintiffs have stand-
ing to sue, and therefore join Parts I and II of his opinion.
However, we part company when it comes to the merits of the
plaintiffs’ claims. In my opinion, the district court correctly
dismissed the plaintiffs’ lawsuit because duly-elected govern-
ment officials have the right to speak out in their official
capacities on matters of secular concern to their constituents,
even if their statements offend the religious feelings of some
of their other constituents. The key here is that the resolution
in question had a primarily secular purpose and effect and
addressed a matter of indisputably civic concern.
Government speech or conduct violates the Establishment
Clause’s neutrality-only requirement when it: (1) has a pre-
dominantly religious purpose; (2) has a principal or primary
effect of advancing or inhibiting religion; or (3) fosters exces-
sive entanglement with religion. Lemon v. Kurtzman, 403
U.S. 602, 612 (1971). We have previously applied the tripar-
72
John Locke, A Letter Concerning Toleration 56 (James H. Tully ed.,
Hackett Publ’g Co. 1983) (1689).
17386 CATHOLIC LEAGUE v. SAN FRANCISCO
tite Lemon test to governmental expressions of alleged reli-
gious hostility. See Am. Family Ass’n v. City & County of
S.F., 277 F.3d 1114, 1121 (9th Cir. 2002); see also Vernon v.
City of L.A., 27 F.3d 1385, 1396 (9th Cir. 1994). The resolu-
tion in this case satisfies each of Lemon’s three prongs.
There is no denying that marriage and adoption are secular
issues regulated by state law, even though they can (but do
not necessarily) involve religious ceremonies and traditions.
The same-sex marriage debate surely has religious signifi-
cance to many, but it is also a hot-button political issue of
considerable secular interest to the defendants’ constituents at
large. The defendants passed their March 2006 resolution in
direct response and contemporaneous to Cardinal Levada’s
March 2006 directive. The title of the resolution refers explic-
itly to Cardinal Levada’s directive to local Catholic charities
to “stop placing children in need of adoption in homosexual
households.” Its stated purpose is to “urge[ ] Cardinal William
Levada . . . to withdraw [t]his . . . directive.” The reasons
given are purely secular, not theological. For example, the
resolution contains nothing like, “The Church has misread the
Bible,” or “Our God approves of same-sex marriage.”
I agree with the district court that under Lemon’s first prong
(the purpose prong), an “objective observer” who is “pre-
sumed to be familiar with the history of the government’s
actions and competent to learn what history has to show”
would conclude that the defendants acted with a predomi-
nantly secular purpose, i.e., to promote equal rights for same-
sex couples in adoption and to place the greatest number of
children possible with qualified families. Moreover, San Fran-
cisco has a well-known and lengthy history of promoting gay
rights. See Catholic League v. City & County of S.F., 464 F.
Supp. 2d 938, 946 & n.1 (taking judicial notice of other San
Francisco resolutions promoting the rights of same-sex cou-
ples). A reasonable observer would consider the resolution in
the context of both this history and the Catholic Church’s
unabashed efforts to frustrate same-sex adoption in San Fran-
CATHOLIC LEAGUE v. SAN FRANCISCO 17387
cisco, the defendants’ political bailiwick. In light of this con-
text, such an observer would conclude that the primary
purpose behind the resolution was secular — to promote
same-sex adoption.
Under Lemon’s second prong (the effect prong), an objec-
tively reasonable observer familiar with the history of the
government practice at issue here would conclude that the pri-
mary effect of the resolution was to promote same-sex adop-
tion. See Am. Family, 277 F.3d at 1122. Read as a whole, see
id., the resolution’s primary message is that “same-sex cou-
ples are just as qualified to be parents as are heterosexual cou-
ples” and that placing children in homosexual households
does not do violence to them. An objectively reasonable
observer would conclude, as they would in the context of the
purpose prong, that both San Francisco’s history of promoting
gay rights and the timing of the defendants’ resolution, incen-
diary though it may be, is aimed at expressing the defendants’
position on the secular issue of same-sex adoption.
Finally, under Lemon’s third prong (the entanglement
prong), this resolution does not excessively entangle the
defendants with religion. It was an isolated, non-binding
expression of the Board of Supervisors’ opinion on a secular
matter, which the plaintiffs have not alleged even potentially
interfered with the inner workings of the Catholic Church.
This type of one-off entreaty does not violate Lemon’s third
prong; “[a]dministrative entanglement typically involves
comprehensive, discriminating, and continuing surveillance of
religion.” Vernon, 27 F.3d at 1399. To like effect is Nurre v.
Whitehead, 580 F.3d 1087 (9th Cir. 2009), holding that a
school district’s single request that a student not play “Ave
Maria” at graduation, because of multiple complaints about
religious music, did not constitute excessive entanglement
with religion.
In American Family, we concluded that the Board of Super-
visors did not violate the Establishment Clause by passing
17388 CATHOLIC LEAGUE v. SAN FRANCISCO
resolutions similar to those at issue here. The resolutions in
American Family criticized a religious political coalition for
its moral position on homosexuality, assailed the scientific
and sociological bases for the coalition’s position, and urged
secular television stations not to support the coalition’s mes-
sage of intolerance. See Am. Family, 277 F.3d at 1119-20.
One of the coalition’s ads, placed in the San Francisco Chron-
icle, proclaimed that “God abhors any form of sexual sin,”
including homosexuality. Id. at 1119. The Board passed the
resolutions in response to that ad, and others. Id. at 1119-20.
The plaintiffs would have us distinguish the resolution in
this case from the one in American Family on the grounds that
the Board directed this resolution toward a religious entity
rather than a political one. But the mere fact that a resolution
calls out a church or a clergyman cannot carry the day. Other-
wise, the Establishment Clause would gag secular officials
from responding to religious entities even when those entities
have chosen to enter the secular fray.
We would have a different case on our hands had the
defendants called upon Cardinal Levada to recant his views
on transubstantiation, or had urged Orthodox Jews to abandon
the laws of kashrut, or Mormons their taboo of alcohol. Those
matters of religious dogma are not within the secular arena in
the way that same-sex marriage and adoption are. The speech
here concerns a controversial public issue that affects the
civic lives of the citizens of San Francisco, religious and non-
religious alike. I would not construe the First Amendment to
prohibit elected officials from speaking out, in their official
capacities, on matters of such clearly civil import, even if
their speech is insolent, stupid, or worse. A church has every
right to take a firm moral position on secular issues, but it has
no right to prevent public officials from criticizing its position
on those secular issues — especially when one of its clergy
fires the first salvo.
I would affirm.
CATHOLIC LEAGUE v. SAN FRANCISCO 17389
GRABER, Circuit Judge, joined by KOZINSKI, Chief Judge,
and RYMER, HAWKINS, and McKEOWN, Circuit Judges,
dissenting on the issue of jurisdiction but concurring in the
judgment:
Plaintiffs Catholic League for Religious and Civil Rights
(“Catholic League”), Dr. Richard Sonnenshein, and Valerie
Meehan brought this 42 U.S.C. § 1983 action against Defen-
dants City and County of San Francisco, San Francisco Board
of Supervisors President Aaron Peskin, and Supervisor Tom
Ammiano, challenging their enactment of Resolution of
March 21, 2006, No. 168-06. Plaintiffs argue that the resolu-
tion violates the Establishment Clause of the First Amend-
ment by impermissibly attacking Plaintiffs’ religion,
Catholicism. The resolution concerns a Catholic cardinal and
his directive to Catholic Charities CYO of San Francisco
(“Catholic Charities”), a non-profit provider of social ser-
vices, on the topic of adoption by same-sex couples. I would
not reach the merits of this dispute. Instead, I would hold that
we lack jurisdiction over this case because Plaintiffs lack
Article III standing.
The doctrine of standing requires that Plaintiffs demon-
strate a concrete and particularized injury caused by the pas-
sage of Resolution No. 168-06. But the resolution plainly
applies (albeit in a non-binding, hortatory way) only to per-
sons and entities other than Plaintiffs. Plaintiffs do not allege
any form of concrete and particularized injury resulting from
the resolution; they allege only a deep and genuine offense.
It is a bedrock principle of federal courts’ limited jurisdiction
that a person’s deep and genuine offense to a defendant’s
actions, without more, generally does not suffice to confer
standing. Here, Plaintiffs do not allege more.
The doctrine of standing not only ensures robust litigation
by interested parties, but also protects the interests of those
potential plaintiffs who have chosen, for whatever reason, not
to bring suit. Plaintiffs’ allegations suggest that several enti-
17390 CATHOLIC LEAGUE v. SAN FRANCISCO
ties and individuals—including Cardinal Levada, Archbishop
Niederauer, and Catholic Charities—likely have standing. Just
as much as we must resolve all cases within our jurisdiction,
we also must respect the decision by those persons and enti-
ties not to sue.
Because a majority of the en banc panel holds that we have
jurisdiction, I dissent from that portion of the disposition. But,
because I agree with the judgment affirming the district
court’s dismissal of the action, I concur in the judgment.
FACTUAL AND PROCEDURAL HISTORY
Catholic Charities is an agency of the San Francisco Arch-
diocese of the Catholic Church. It operates as a non-profit
provider of social services in the Bay Area. Until 2006, Cath-
olic Charities’ services included placing children with adop-
tive parents.
In March 2006, Cardinal William Joseph Levada, the head
of the Congregation for the Doctrine of the Faith, issued a
directive to Catholic Charities. The directive instructed Catho-
lic Charities to stop placing children in need of adoption with
same-sex couples. The San Francisco Board of Supervisors
responded by unanimously adopting a non-binding resolution:
[Resolution urging Cardinal Levada to withdraw his
directive to Catholic Charities forbidding the place-
ment of children in need of adoption with same-sex
couples]
Resolution urging Cardinal William Levada, in
his capacity as 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 adop-
tion with homosexual households.
CATHOLIC LEAGUE v. SAN FRANCISCO 17391
WHEREAS, 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 tradi-
tions 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 house-
holds,” and “Allowing children to be adopted by per-
sons 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 rhet-
oric 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 quali-
fied 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 discrim-
inatory directives of Cardinal Levada; now, there-
fore, 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
17392 CATHOLIC LEAGUE v. SAN FRANCISCO
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.
Resolution of Mar. 21, 2006, No. 168-06 (bracketed sentence
in original). According to the complaint, Defendants also
threatened to withhold funding from Catholic Charities if that
organization refused to place children with same-sex couples.
Soon thereafter, Plaintiffs brought this action. Plaintiffs
allege that the resolution violates the Establishment Clause of
the First Amendment. They seek “nominal damages, a decla-
ration that this anti-Catholic resolution is unconstitutional,
and a permanent injunction enjoining this and other official
resolutions, pronouncements, or declarations against Catho-
lics and their religious beliefs.” In the complaint, Plaintiffs
identify themselves and their injuries as follows:
Plaintiff Catholic League is the nation’s largest
Catholic civil rights organization. Founded in 1973,
the Catholic League defends the right of Catholics—
lay and clergy alike—to participate in American
public life without defamation or discrimination. The
Catholic League has approximately 6,000 members
who reside in the City and County of San Francisco.
The Catholic League and its members object to, and
have been injured by, the anti-Catholic resolution
adopted by Defendants. Defendants’ anti-Catholic
resolution attacks the deeply held religious beliefs of
Catholics, conveys the impermissible, state-
sponsored message of disapproval of and hostility
toward the Catholic religion, and sends a clear mes-
sage to Catholic League, its members, and others
who are adherents to the Catholic faith that they are
outsiders, not full members of the political commu-
nity.
CATHOLIC LEAGUE v. SAN FRANCISCO 17393
Plaintiff Dr. Richard Sonnenshein is a resident of
the City and County of San Francisco. He is a devout
Catholic, and he objects to and has been injured by
the anti-Catholic resolution adopted by Defendants.
Defendants’ anti-Catholic resolution attacks Plaintiff
Sonnenshein’s deeply held religious beliefs, conveys
the impermissible, state-sponsored message of disap-
proval of and hostility toward the Catholic religion,
and sends a clear message to Plaintiff Sonnenshein
and others who are adherents to the Catholic faith
that they are outsiders, not full members of the polit-
ical community. Plaintiff Sonnenshein is a member
of the Catholic League.
Plaintiff Valerie Meehan is a resident of the City
and County of San Francisco. She is a third-
generation San Franciscan and a devout Catholic.
Plaintiff Meehan objects to and has been injured by
the anti-Catholic resolution adopted by Defendants.
Defendants’ anti-Catholic resolution attacks Plaintiff
Meehan’s deeply held religious beliefs, conveys the
impermissible, state-sponsored message of disap-
proval of and hostility toward the Catholic religion,
and sends a clear message to Plaintiff Meehan and
others who are adherents to the Catholic faith that
they are outsiders, not full members of the political
community.
Plaintiffs Sonnenshein and Meehan have had
direct contact with and have been injured by the
offending anti-Catholic resolution, which stigmatizes
Plaintiffs on account of their religious beliefs and
conveys a message to them that they are outsiders,
not full members of the political community. Plain-
tiffs Sonnenshein and Meehan, who are citizens and
municipal taxpayers of Defendant City and County
of San Francisco, have been injured by the abuse of
government authority and the misuse of the instru-
17394 CATHOLIC LEAGUE v. SAN FRANCISCO
ments of government to criticize, demean, and attack
their religion and religious beliefs, thereby chilling
their access to the government. As a result of Defen-
dants’ anti-Catholic resolution, Plaintiffs Sonnen-
shein and Meehan will curtail their activities to
lessen their contact with Defendants, thereby causing
further harm. Plaintiff Catholic League, through its
members, has been similarly injured and harmed by
Defendants’ anti-Catholic resolution.
(Paragraph numbering omitted.)
Defendants filed a motion to dismiss for failure to state a
claim. Defendants argued, on the merits, that the resolution
does not violate the Establishment Clause. The district court
agreed. In a published opinion, the district court held that the
resolution does not violate the Establishment Clause and,
therefore, dismissed the case. Catholic League for Religious
& Civil Rights v. City of San Francisco, 464 F. Supp. 2d 938(N.D. Cal. 2006).
Plaintiffs timely appealed. In a published opinion, a three-
judge panel of our court unanimously affirmed, agreeing with
the district court that the resolution does not violate the Estab-
lishment Clause. Catholic League for Religious & Civil
Rights v. City of San Francisco, 567 F.3d 595, 608 (9th Cir.
2009). We granted rehearing en banc. 586 F.3d 1166 (9th Cir.
2009).
The parties never raised the issue of Plaintiffs’ Article III
standing, and neither the district court nor the panel addressed
the issue. Shortly before the date of our en banc oral argu-
ment, we sua sponte directed the parties to file simultaneous
briefs on the issue of Article III standing and to be prepared
to discuss the issue at oral argument.
STANDARD OF REVIEW
We review de novo the district court’s dismissal for failure
to state a claim. Barker v. Riverside Cnty. Office of Educ., 584
F.3d 821, 824 (9th Cir. 2009).
CATHOLIC LEAGUE v. SAN FRANCISCO 17395
DISCUSSION
Before reaching the merits of any case, including an Estab-
lishment Clause challenge, we must ensure that the plaintiff
has Article III standing. Elk Grove Unified Sch. Dist. v. New-
dow, 542 U.S. 1, 11 (2004). “The question of standing is not
subject to waiver . . . : We are required to address the issue
even if the courts below have not passed on it, and even if the
parties fail to raise the issue before us.” United States v. Hays,
515 U.S. 737, 742 (1995) (brackets and internal quotation
marks omitted). “This obligation to notice defects in . . .
subject-matter jurisdiction assumes a special importance when
a constitutional question is presented. In such cases we have
strictly adhered to the standing requirements . . . .” Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986).1
A. Article III Standing in Establishment Clause Cases
The Article III standing requirements “are familiar: The
plaintiff must show that the conduct of which he complains
has caused him to suffer an ‘injury in fact’ that a favorable
judgment will redress.” Newdow, 542 U.S. at 12 (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Familiar though the requirements may be, the Supreme Court
also has cautioned that standing is not a precise doctrine. See
id. at 11 (“The standing requirement is born partly of ‘an idea,
which is more than an intuition but less than a rigorous and
explicit theory, about the constitutional and prudential limits
to the powers of an unelected, unrepresentative judiciary in
our kind of government.’ ” (quoting Allen v. Wright, 468 U.S.
737, 750 (1984)); Valley Forge Christian Coll. v. Ams. United
1
For those reasons, it is incorrect to state that Defendants have “con-
ceded standing.” Maj. op. at 17365. As the majority elsewhere recognizes,
a party may not “concede” that we have subject matter jurisdiction. (A
majority of the en banc panel has voted for Judge Kleinfeld’s opinion with
respect to standing but not with respect to other Parts. Because I cite only
those Parts of Judge Kleinfeld’s opinion that command a majority, I refer
to his opinion throughout as the majority opinion.)
17396 CATHOLIC LEAGUE v. SAN FRANCISCO
for Separation of Church & State, Inc., 454 U.S. 464, 475
(1982) (stating that “the concept of ‘Art. III standing’ has not
been defined with complete consistency . . . [and] cannot be
reduced to a one-sentence or one-paragraph definition”).
That imprecision is manifest in the Establishment Clause
context. Courts regularly have noted that it can be difficult to
determine whether an Establishment Clause plaintiff has
alleged an “injury in fact” for purposes of Article III standing.
See, e.g., Cooper v. U.S. Postal Serv., 577 F.3d 479, 489-90
(2d Cir. 2009) (“[S]o far the [Supreme] Court has announced
no reliable and handy principles of analysis. . . . Lower courts
are left to find a threshold for injury and determine somewhat
arbitrarily whether that threshold has been reached. . . . In
short, there is uncertainty concerning how to apply the injury
in fact requirement in the Establishment Clause context.”),
cert. denied, 130 S. Ct. 1688 (2010); Vasquez v. Los Angeles
Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007) (“The concept of
a ‘concrete’ injury is particularly elusive in the Establishment
Clause context.”); Suhre v. Haywood Cnty., 131 F.3d 1083,
1085 (4th Cir. 1997) (same); Murray v. City of Austin, 947
F.2d 147, 151 (5th Cir. 1991) (same); Saladin v. City of Mil-
ledgeville, 812 F.2d 687, 691 (11th Cir. 1987) (same). The
difficulty stems, at least in part, from the nature of the
asserted “injury in fact.” Unlike most other types of cases, in
which the plaintiff suffers a physical injury or a pecuniary
loss, the plaintiff in an Establishment Clause case usually
does not suffer those types of harm. Vasquez, 487 F.3d at
1250-51; Suhre, 131 F.3d at 1086. Instead, the plaintiff in an
Establishment Clause case typically asserts only that the gov-
ernment’s action has caused an injury in fact to “non-
economic interests of a spiritual, as opposed to a physical or
pecuniary, nature.” Vasquez, 487 F.3d at 1250-51; see Suhre,
131 F.3d at 1086 (holding that “ ‘the spiritual, value-laden
beliefs of the plaintiffs’ are often most directly affected by an
alleged establishment of religion” (quoting ACLU of Ga. v.
Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098,
1102 (11th Cir. 1983) (per curiam))).
CATHOLIC LEAGUE v. SAN FRANCISCO 17397
The Supreme Court has made clear that this sort of harm—
injury to interests of a spiritual nature—can suffice to estab-
lish an “injury in fact” for purposes of Article III standing.
See, e.g., Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 154 (1970) (“A person or a family may have
a spiritual stake in First Amendment values sufficient to give
standing to raise issues concerning the Establishment Clause
. . . .”). But it is equally clear that an asserted injury of that
nature does not grant the plaintiff carte blanche to federal-
court resolution of Establishment Clause challenges. Valley
Forge, 454 U.S. at 485.
Even though the injury is spiritual in nature, the injury also
must be direct and personal to the particular plaintiff. “ ‘The
essence of the standing inquiry is whether the [plaintiffs] have
alleged such a personal stake in the outcome of the contro-
versy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional ques-
tions.’ ” Larson v. Valente, 456 U.S. 228, 238-39 (1982)
(quoting Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59, 72 (1978)). “[B]ut standing is not measured
by the intensity of the litigant’s interest or the fervor of his
advocacy.” Valley Forge, 454 U.S. at 486. “[A]t an irreduc-
ible minimum, Art. III requires the [plaintiff] to ‘show that he
personally has suffered some actual or threatened injury
. . . .’ ” Id. at 472 (emphasis added) (quoting Gladstone, Real-
tors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)); see also
Lujan, 504 U.S. at 560 & n.1 (holding that an “injury in fact”
“must affect the plaintiff in a personal and individual way”
(emphasis added)). A plaintiff “ ‘must allege facts showing
that he is himself adversely affected . . . [in part] to put the
decision as to whether review will be sought in the hands of
those who have a direct stake in the outcome.’ ” Valley
Forge, 454 U.S. at 473 (emphasis added) (quoting Sierra
Club v. Morton, 405 U.S. 727, 740 (1972)). The requirement
of a direct and personal injury in part “reflects a due regard
17398 CATHOLIC LEAGUE v. SAN FRANCISCO
for the autonomy of those persons likely to be most directly
affected by a judicial order.” Id.In Valley Forge, 454 U.S. at 467-68, the plaintiffs brought
an Establishment Clause challenge to a transfer of land from
the federal government to a religious organization. The plain-
tiffs had never visited the land in question, nor did they have
any other direct connection to it. The Court held that the
plaintiffs “fail[ed] to identify any personal injury suffered by
them as a consequence of the alleged constitutional error,
other than the psychological consequence presumably pro-
duced by observation of conduct with which one disagrees.
That is not an injury sufficient to confer standing under Art.
III . . . .” Id. at 485 (emphasis omitted).
The plaintiffs in Valley Forge maintained that the Court’s
earlier cases had held “that any person asserting an Establish-
ment Clause violation possesses a ‘spiritual stake’ sufficient
to confer standing.” Id. at 486 n.22. The Court disagreed and
illustrated the plaintiffs’ error by reference to two cases rais-
ing challenges to required Bible readings in public schools:
School District v. Schempp, 374 U.S. 203 (1963); and Dore-
mus v. Board of Education, 342 U.S. 429 (1952). In Doremus,
the Court lacked jurisdiction because the student had gradu-
ated but, in Schempp, the student was still in school, so the
Court held that the plaintiffs had standing. Compare Dore-
mus, 342 U.S. at 432-33, with Schempp, 374 U.S. at 224 n.9.
In Valley Forge, the Court explained: “The plaintiffs in
Schempp had standing, not because their complaint rested on
the Establishment Clause—for as Doremus demonstrated, that
is insufficient—but because impressionable schoolchildren
were subjected to unwelcome religious exercises or were
forced to assume special burdens to avoid them.” Valley
Forge, 454 U.S. at 487 n.22; see also Schempp, 374 U.S. at224 n.9 (“The parties here are school children and their par-
ents, who are directly affected by the laws and practices
against which their complaints are directed.”).
CATHOLIC LEAGUE v. SAN FRANCISCO 17399
The courts have developed a substantial body of case law
interpreting Valley Forge’s holding that the plaintiff must
allege a direct and personal injury other than “the psychologi-
cal consequence presumably produced by observation of con-
duct with which one disagrees.”2 454 U.S. at 485. Below, I
describe three general categories of cases. First, and most
directly relevant here, I describe cases involving a specific
governmental policy or statutory provision, in which the
plaintiff challenges the policy or provision directly. As dis-
cussed below, the cases have held that a plaintiff has standing
to challenge the policy or provision only if the plaintiff proves
that the enactment applies directly to him or her. A general-
ized objection to the policy or provision is insufficient.
The requirement that the plaintiff demonstrate that the pol-
icy or provision applies directly to him or her is consistent
with the courts’ approach in the second and third categories
of cases. In religious exercise cases, the courts have addressed
situations in which the plaintiff challenges some form of reli-
gious invocation at a public gathering or ceremony. The
courts have held that a plaintiff has standing to challenge a
religious exercise only if the plaintiff is directly subjected to
the unwelcome exercise. Similarly, in the religious display
cases, the courts have addressed situations in which the plain-
tiff challenges a religious display on public property. The
courts have held that a plaintiff has standing to challenge a
religious display only if the plaintiff has altered his or her
behavior or if the plaintiff has direct and unwelcome contact
with the display.
2
We have rejected the proposition that the plaintiffs in Valley Forge
lacked standing because their offense was grounded in ideological, rather
than religious, beliefs. Buono v. Norton, 371 F.3d 543, 547 (9th Cir.
2004), on appeal after remand, 527 F.3d 758 (9th Cir. 2008), rev’d and
remanded on other grounds, 130 S. Ct. 1803 (2010). We held that, in Val-
ley Forge, the Supreme Court “drew a distinction between abstract griev-
ances and personal injuries, not ideological and religious beliefs.” Id.Significantly, all cases interpreting Valley Forge, discussed infra, have
rejected the proposition that abstract harm to religious beliefs alone is suf-
ficient to confer standing.
17400 CATHOLIC LEAGUE v. SAN FRANCISCO
Those principles—established through longstanding and
consistent analysis by the Supreme Court, by us, and by our
sister circuits—constitute an important source of law and
guide our analysis here. Accordingly, I cannot understand the
majority’s assertion that my opinion requires that these “cases
must somehow be distinguished . . . or overruled.” Maj. op.
at 17370. In no way do I suggest that these cases do not “re-
tain their vitality” or that they “are overruled.” Id. To the con-
trary, I extract from these cases certain principles of law that
we must apply here, to this case. Accordingly, my analysis of
standing is entirely consistent with the existing body of law.
It is the majority opinion that fails to explain how a conclu-
sion of standing in this case is consistent with that substantial
body of law—a body of law discussed in detail in this opinion
but referenced only in passing, in list form, in his.
Furthermore, the list in majority opinion identifies the con-
stitutional issues that either the Supreme Court or we have
addressed in an earlier case. Maj. op. at 17367-68. The major-
ity then concludes that, because the courts have addressed
those issues, surely a finding of standing in this case is consis-
tent with those cases. See id. at 17369-70 (“If we conclude
that plaintiffs in the case before us have standing, we need not
decide whether those cases retain their vitality or are over-
ruled, because our conclusion would be consistent with
them.”). But standing focuses on the plaintiff, not on the issue.
That this case raises an interesting constitutional issue similar
to issues addressed in previous cases is, quite simply, beside
the point.3 The relevant questions are whether the plaintiff has
3
I could not agree more that “[s]tanding is emphatically not a doctrine
for shutting the courthouse door to those whose causes we do not like.”
Maj. op. at 17367. Indeed, at least some of those who join this opinion
might have been inclined to agree that the resolution violates the Estab-
lishment Clause, had a proper plaintiff brought this case. Equally impor-
tant, however, standing is emphatically not a doctrine for opening the
courthouse door to everyone who wishes us to resolve their questions of
constitutional law—however academically interesting those questions may
be.
CATHOLIC LEAGUE v. SAN FRANCISCO 17401
suffered a cognizable injury and whether that injury is
redressable. It is to those relevant questions that I now turn.
1. Governmental Policies or Statutory Provisions
In many cases, including recent ones, plaintiffs have raised
Establishment Clause challenges to specific governmental
policies or statutory provisions. See, e.g., Larson, 456 U.S. at
230-34 (state statute imposing registration and reporting
requirements on “religious organizations”); Newdow v.
Lefevre, 598 F.3d 638, 641 (9th Cir. 2010) (federal statute
declaring the national motto “In God We Trust”); Newdow v.
Rio Linda Union Sch. Dist., 597 F.3d 1007, 1012-13 (9th Cir.
2010) (federal statute codifying the pledge of allegiance as
including the words “under God”); Chaplaincy of Full Gospel
Churches v. U.S. Navy (In re Navy Chaplaincy), 534 F.3d
756, 758-59 (D.C. Cir. 2008) (federal policy concerning navy
chaplains’ retirement benefits), cert. denied, 129 S. Ct. 1918(2009); Graham v. Deukmejian, 713 F.2d 518, 519 (9th Cir.
1983) (state policy requiring blood transfusions during certain
surgeries, contrary to religious beliefs of Jehovah’s Wit-
nesses); Flora v. White, 692 F.2d 53, 54 (8th Cir. 1982) (per
curiam) (state constitutional provision requiring certain
officeholders and witnesses to profess their belief in the exis-
tence of “a God”); see also Am. Family Ass’n v. City of San
Francisco, 277 F.3d 1114, 1119-20 (9th Cir. 2002) (municipal
board of supervisors’ formal disapproval of an advertising
campaign by religious groups);4 cf. Smelt v. Cnty. of Orange,
4
In American Family, we did not discuss standing but, rather, asserted
jurisdiction over the Establishment Clause issue sub silentio. Sub silentio
holdings on jurisdiction occupy an interesting place in our jurisprudence.
We cannot ignore such holdings. See E. Enters. v. Apfel, 524 U.S. 498,
522 (1998) (“ ‘While we are not bound by previous exercises of jurisdic-
tion in cases in which our power to act was not questioned but was passed
sub silentio, neither should we disregard the implications of an exercise of
judicial authority assumed to be proper’ in previous cases.” (quoting
Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962))). But their
import necessarily is difficult to assess because, by definition, there is no
17402 CATHOLIC LEAGUE v. SAN FRANCISCO
447 F.3d 673, 676-77 (9th Cir. 2006) (challenge to federal
statute concerning same-sex marriages on other constitutional
grounds). The courts have held that, if the statute or policy
applies to the plaintiff in a concrete manner, then the plaintiff
has standing. See Larson, 456 U.S. at 241 (“The threatened
application of [the statutory provision] to the Church surely
amounts to a distinct and palpable injury to [the plaintiffs]: It
disables them from soliciting contributions in the State of
Minnesota unless the Church complies with registration and
reporting requirements that are hardly de minimis.”); Graham,
713 F.2d at 519 (“The Witnesses must show that they have
suffered injury, or that future injury is threatened, as a result
of the defendants’ conduct. The Witnesses have so alleged,
claiming that blood transfusions are contrary to their religious
beliefs and that California’s actions threaten to discourage
physicians from performing certain operations without such
transfusions.” (citation omitted)). If the plaintiffs are not sub-
ject to the challenged provision, however, they lack the requi-
site particularized harm. See Lefevre, 598 F.3d at 643 (holding
that the plaintiff lacked standing to challenge the statute
declaring the national motto “In God We Trust” because the
allegation that, because of the statute, the plaintiff is a “politi-
cal outsider” and suffers “a stigmatic injury” “is insufficient
to confer standing”); Rio Linda, 597 F.3d at 1016 (holding
that the plaintiff lacked standing to challenge the federal stat-
ute codifying the pledge of allegiance as including the words
“under God” because the plaintiff sustained no personal injury
where “nothing in the Pledge [or the statute codifying it] actu-
reasoning in the opinion that we may apply to the case at hand. In any
event, no difficulty is presented here, because the facts of American Fam-
ily plainly establish that the standing requirements I discuss in text were
met in that case (which may explain our silence on the issue). For
instance, I take judicial notice of the complaint in American Family. The
plaintiffs there alleged the government’s policy statement was directed
specifically at the plaintiffs and that the statement prevented the plaintiffs
from placing certain television advertisements that they otherwise would
have placed. In short, the policy statement applied directly to the plaintiffs.
CATHOLIC LEAGUE v. SAN FRANCISCO 17403
ally requires anyone to recite it”); In re Navy Chaplaincy, 534
F.3d at 758 (holding that navy chaplain plaintiffs could not
challenge the U.S. Navy’s alleged policy of discrimination in
its retirement system, in favor of Catholic navy chaplains,
because the plaintiffs themselves had not suffered discrimina-
tion); Flora, 692 F.2d at 54 (holding that atheist plaintiffs
lacked standing to challenge a discriminatory state constitu-
tional provision because the provision had never been applied
to the plaintiffs); see also Smelt, 447 F.3d at 683-86 (holding
that plaintiff same-sex couple lacked standing to challenge
federal statute denying benefits to married same-sex couples,
because the plaintiffs were not married under state law and
had not been denied any federal benefits or rights).
2. Religious Exercise Cases
In a second category, plaintiffs have brought Establishment
Clause challenges to some form of religious invocation at a
public gathering or ceremony. See, e.g., Schempp, 374 U.S. at
205-06 (daily scripture readings in public school); Doremus,
342 U.S. at 430 (same); Rio Linda, 597 F.3d at 1012-13 (reci-
tations of the pledge of allegiance in public school); Pelphrey
v. Cobb Cnty., 547 F.3d 1263, 1266 (11th Cir. 2008) (invoca-
tions at beginning of county planning meetings); Doe v.
Tangipahoa Parish Sch. Bd., 494 F.3d 494, 496-99 (5th Cir.
2007) (en banc) (invocations at school board meetings); Doe
v. Sch. Dist. of Norfolk, 340 F.3d 605, 607-08 (8th Cir. 2003)
(scheduled invocation and benediction at high school gradua-
tion); Doe v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 291
(5th Cir. 2001) (prayers at public school); Doe v. Madison
Sch. Dist. No. 321, 177 F.3d 789, 791 (9th Cir. 1999) (en
banc) (student prayers at high school graduations); see also
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 (2000)
(student prayers at high school football games); Lee v. Weis-
man, 505 U.S. 577, 580-83 (1992) (prayers at graduation cer-
emonies); Wallace v. Jaffree, 472 U.S. 38, 40-42 (1985)
(school prayer and meditation); Engel v. Vitale, 370 U.S. 421,
17404 CATHOLIC LEAGUE v. SAN FRANCISCO
422-23 (1962) (school prayer).5 In Valley Forge, 454 U.S. at487 n.22, the Court examined Doremus and Schempp and
explained that a plaintiff has standing if he or she has actually
been “subjected to unwelcome religious exercises.” Accord-
ingly, a plaintiff who did not attend an event at which the reli-
gious invocation occurred had never actually been “subjected
to unwelcome religious exercises,” id., and therefore lacked
standing. See Tangipahoa Parish, 494 F.3d at 497-98 (hold-
ing that the plaintiffs lack standing because “there is no evi-
dentiary proof that any of the [plaintiffs] ever attended a
school board session at which a prayer . . . was recited”); see
also Madison, 177 F.3d at 797 (holding that a parent plaintiff
did not have standing where “she does not claim that she will
attend another graduation ceremony in the future”). When
plaintiffs regularly attend events at which an invocation
occurs, however, the plaintiffs have standing because they
have been subjected to unwelcome religious exercises. See
Pelphrey, 547 F.3d at 1279-80 (regular attendee at county
planning commission meetings); Ouachita Parish, 274 F.3d at
292 (students at public schools exposed to daily prayer).
The Eighth Circuit considered an interesting combination
of these two extremes in Norfolk. There, the public school
announced to the student body, at a mandatory graduation
rehearsal, that the impending graduation ceremony would
include an invocation and benediction. Norfolk, 340 F.3d at
607. After the ACLU and a parent expressed concern, the
school dropped the invocation and benediction from the
scheduled ceremony. Id. During the ceremony, however, a
member of the school board interrupted his speech to lead the
5
In the four cases following the “see also” indicator, I list the cases in
which the Supreme Court did not discuss standing but, rather, asserted
jurisdiction over the Establishment Clause issue sub silentio. As explained
above, supra note 4, sub silentio holdings on jurisdiction can present inter-
esting challenges. But, here, there are no difficulties because the facts of
the listed cases plainly establish that the standing requirements I discuss
in text were met in those cases (which may explain the Court’s silence on
the issue of standing).
CATHOLIC LEAGUE v. SAN FRANCISCO 17405
audience through a recitation of the Lord’s Prayer. Id. at 608.
An offended student and his mother sued the school district
and certain members of the school board. Id.
The court had “little trouble” concluding that the plaintiffs
had standing to challenge the actions of the School Board
member who read the prayer (and the other defendants, on the
theory that they were complicit). Id. at 609. After all, the
plaintiffs “were subjected to an unwelcome religious recita-
tion at a school function.” Id. But whether the plaintiffs had
standing to challenge the school’s “past policy of allowing
prayer at graduation ceremonies[ ] present[ed] a much closer
issue.” Id. The court acknowledged that the school’s
announcement to the students at the mandatory rehearsal that,
consistent with the school’s tradition, the graduation cere-
mony would include an invocation and benediction consti-
tuted some personal contact with an endorsement of religion.
Id. at 609-10. Nevertheless, the court concluded that the plain-
tiffs lacked standing to pursue this claim, both because the
plaintiffs’ contact with endorsement was insufficient and
because the plaintiffs did not allege that the past policy caused
them any particularized injury. Id.
3. Religious Display Cases
In a legion of cases, plaintiffs have challenged religious
displays. See, e.g., Lefevre, 598 F.3d at 640 (national motto
“In God We Trust” on the nation’s coins and currency);
ACLU of Ky. v. Grayson Cnty., 591 F.3d 837, 840-41 (6th Cir.
2010) (Ten Commandments in county courthouse); Cooper,
577 F.3d at 484 (religious displays at post office); Green v.
Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 787-88 (10th
Cir. 2009) (Ten Commandments on courthouse green), cert.
denied, 130 S. Ct. 1687 (2010); Caldwell v. Caldwell, 545
F.3d 1126, 1128 (9th Cir. 2008) (religious statements on pub-
lic university’s website), cert. denied, 129 S. Ct. 1617 (2009);
Barnes-Wallace v. City of San Diego, 530 F.3d 776, 783 (9th
Cir. 2008) (order) (Boy Scout symbols in public park), cert.
17406 CATHOLIC LEAGUE v. SAN FRANCISCO
denied, 130 S. Ct. 2401 (2010); Vasquez, 487 F.3d at 1247-48(removal of cross on county seal); O’Connor v. Washburn
Univ., 416 F.3d 1216, 1218-19 (10th Cir. 2005) (statue of
Roman Catholic bishop displayed at public university in out-
door art show); Books v. Elkhart Cnty., 401 F.3d 857, 858
(7th Cir. 2005) (Ten Commandments on public property);
ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484, 487
(6th Cir. 2004) (Ten Commandments on courtroom wall);
Buono, 371 F.3d at 544 (cross on a hill); ACLU Neb. Found.
v. City of Plattsmouth, 358 F.3d 1020, 1024-25 (8th Cir.
2004) (Ten Commandments in public park), adopted in rele-
vant part, 419 F.3d 772, 775 n.4 (8th Cir. 2005) (en banc);
Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003)
(Ten Commandments monument at Alabama State Judicial
Building); Adland v. Russ, 307 F.3d 471, 474-75 (6th Cir.
2002) (Ten Commandments on public property); ACLU-NJ v.
Twp. of Wall, 246 F.3d 258, 260 (3d Cir. 2001) (holiday dis-
play on public property); Books v. City of Elkhart, 235 F.3d
292, 294 (7th Cir. 2000) (Ten Commandments on front lawn
of municipal building); Suhre, 131 F.3d at 1084 (Ten Com-
mandments in county courthouse); Separation of Church &
State Comm. v. City of Eugene, 93 F.3d 617, 618 (9th Cir.
1996) (per curiam) (51-foot Latin cross on butte in city park);
Doe v. Cnty. of Montgomery, 41 F.3d 1156, 1157 (7th Cir.
1994) (the words “THE WORLD NEEDS GOD” above
entrance to county courthouse); Washegesic v. Bloomingdale
Pub. Schs., 33 F.3d 679, 681 (6th Cir. 1994) (painting of
Jesus Christ in public school hallway); Gonzales v. N. Twp.
of Lake Cnty., 4 F.3d 1412, 1414 (9th Cir. 1993) (crucifix in
public park); Ellis v. City of La Mesa, 990 F.2d 1518, 1520
(9th Cir. 1993) (giant crosses on public land and on city insig-
nia); Murray, 947 F.2d at 149 (cross on city seal); Hewitt v.
Joyner, 940 F.2d 1561, 1562-63 (9th Cir. 1991) (religious
statues in public park); Harris v. City of Zion, 927 F.2d 1401,
1402 (7th Cir. 1991) (crosses on city seal); Freedom from
Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1465 (7th Cir.
1988) (Ten Commandments in public park); Saladin, 812
F.2d at 688-89 (the word “Christianity” on city seal); ACLU
CATHOLIC LEAGUE v. SAN FRANCISCO 17407
of Ill. v. City of St. Charles, 794 F.2d 265, 267 (7th Cir. 1986)
(lighted cross on public property); Hawley v. City of Cleve-
land, 773 F.2d 736, 737 (6th Cir. 1985) (chapel in public air-
port); Rabun Cnty., 698 F.2d at 1100-01 (lighted cross in a
public park); see also McCreary Cnty. v. ACLU of Ky., 545
U.S. 844, 851 (2005) (“large, gold-framed copies” of the Ten
Commandments at county courthouses “posted in a very high
traffic area of the courthouse” (internal quotation marks omit-
ted)); Van Orden v. Perry, 545 U.S. 677, 681 (2005) (Ten
Commandments monolith standing “6-feet high and 3 1/2-feet
wide” in public park); Cnty. of Allegheny v. ACLU Greater
Pittsburgh Chapter, 492 U.S. 573, 578 (1989) (crèche in
county courthouse and menorah outside county building);
Lynch v. Donnelly, 465 U.S. 668, 671 (1984) (crèche contain-
ing figures “ranging in height from 5 [inches] to 5 [feet]”).6
In each case, the plaintiffs alleged that they were deeply
offended by the presence of the religious display on public
property and sought its removal.
The courts consistently have applied the same general legal
rules. A plaintiff has standing to challenge a religious display
if he or she alleges a change in behavior (for instance, affir-
mative avoidance of the religious display). Rabun Cnty., 698
F.2d at 1108. But, although an allegation of a change in
behavior is sufficient to confer standing, it is not required.
Vasquez, 487 F.3d at 1251-52; Suhre, 131 F.3d at 1087-88;
Foremaster v. City of St. George, 882 F.2d 1485, 1490-91
(10th Cir. 1989); Saladin, 812 F.2d at 692-93.7 A plaintiff also
6
In the four cases following the “see also” indicator, I again list the
cases in which the Supreme Court did not discuss standing but, rather,
asserted jurisdiction over the Establishment Clause issue sub silentio. As
explained above, supra note 4, sub silentio holdings on jurisdiction can
present interesting challenges. But, here again, as with the cases noted in
the preceding footnotes, the facts of the listed cases plainly establish that
the standing requirements I discuss in text were met.
7
The Seventh Circuit’s position on this point is a bit uncertain. Compare
Zielke, 845 F.2d at 1467 (suggesting that an allegation that the plaintiff
17408 CATHOLIC LEAGUE v. SAN FRANCISCO
has standing when he or she has alleged “direct and unwel-
come contact” with the religious display. Grayson Cnty., 591
F.3d at 843; Green, 568 F.3d at 794; Books, 401 F.3d at 861;
City of Plattsmouth, 358 F.3d at 1030; accord Lefevre, 598
F.3d at 642 (“unwelcome direct contact”); Caldwell, 545 F.3d
at 1132 (same); Vasquez, 487 F.3d at 1253 (same); Ashbrook,
375 F.3d at 490 (“direct, unwelcome contact”); Suhre, 131
F.3d at 1088 (“direct unwelcome contact”). In the absence of
“direct and unwelcome contact,” however, a plaintiff cannot
meet the standing requirements, even if he or she has contact
with a religious display and is offended by it: “In certain
cases, a plaintiff’s contact with an allegedly offensive reli-
gious or anti-religious symbol will remain too tenuous, indi-
rect, or abstract to give rise to Article III standing.” Vasquez,
487 F.3d at 1251; see also Caldwell, 545 F.3d at 1132-33(holding that the plaintiff’s injury was insufficient for stand-
ing purposes because of the tenuous nature of the connection
between a website user and the religious message on a web-
page and because her contact with the web site was less
forced than in Vasquez); Cnty. of Montgomery, 41 F.3d at
1161-62 (holding that a lawyer did not have standing to chal-
lenge a religious display in a courthouse where the lawyer had
not alleged that he would have any contact with the display);
Washegesic, 33 F.3d at 682 (noting that “psychological harm
alone is not always a sufficient injury for standing purposes
when contact [with a religious display such as a picture of
Jesus Christ in a school’s hallway] is indirect”); Harris, 927
F.2d at 1406 (holding that “the fact that the plaintiffs may be
offended by the seals . . . does not confer standing”).
altered behavior is necessary to establish standing), with Cnty. of Mont-
gomery, 41 F.3d at 1161 (discussing Zielke and suggesting that its holding
was not so broad); see also City of Plattsmouth, 358 F.3d at 1029 n.7 (“It
appears likely the Seventh Circuit has disowned the ‘altered behavior’ test
and distinguished this language contained in Zielke.” (citing Cnty. of
Montgomery, 41 F.3d at 1160-61)). At most, the Seventh Circuit consti-
tutes a minority of one circuit.
CATHOLIC LEAGUE v. SAN FRANCISCO 17409
A plaintiff who challenges a religious display meets the
“direct and unwelcome contact” requirement by demonstrat-
ing some level of frequent or regular contact with the display
during the course of the plaintiff’s regular routine, such that
the plaintiff was “forced” to encounter the display. For exam-
ple, in Vasquez, 487 F.3d at 1251-52, the plaintiff challenged
the existence of a cross on a county seal—which he encoun-
tered on a regular basis as a county resident and county
employee. We held that the plaintiff had standing because he
“held himself out as a member of the community where the
seal is located, as someone forced into frequent regular con-
tact with the seal, and perhaps most importantly, as someone
‘directly affected’ by his ‘unwelcome direct contact’ with the
seal.” Id. at 1251 (emphases added). We explained further:
Unlike plaintiffs in Valley Forge, who were physi-
cally removed from defendant’s conduct, Vasquez is
a member of the community where the allegedly
offending symbol is located, and his contact with the
symbol was frequent and regular, not sporadic and
remote. In fact, . . . the offending symbol “will be
displayed on county buildings, vehicles, flags, sta-
tionary [sic], forms, commendations, uniforms, and
elsewhere through LA County,” thereby forcing
Vasquez into unwelcome “daily contact and expo-
sure” of the most pervasive kind. These facts and
allegations make Vasquez’s status fundamentally
different from that of plaintiffs in Valley Forge.
Id. at 1252 (emphases added).
As another example, in Suhre, 131 F.3d at 1084-85, the
plaintiff challenged a display of the Ten Commandments in
the main courtroom of the county courthouse. The Fourth Cir-
cuit held that the plaintiff had standing because of his regular
visits to that courtroom, both as a frequent litigant and as a
participant in local government meetings (as a plaintiff and
witness in past civil actions, as a defendant in criminal
17410 CATHOLIC LEAGUE v. SAN FRANCISCO
actions, and as an attendee at four past meetings of local gov-
ernment). Id. at 1090. The court found it relevant that the
plaintiff “must confront the religious symbolism whenever he
enters the courtroom on either legal or municipal business.”
Id. (emphasis added).
Vasquez and Suhre are but two examples: In all other cases,
too, the courts have held that the plaintiff has standing
because of some level of regular or frequent contact with the
religious display during the course of the plaintiff’s routine
business. See, e.g., Lefevre, 598 F.3d at 642 (the plaintiff
encounters the national motto on “coins and currency in
everyday life” which “forces him repeatedly to encounter a
religious belief he finds offensive” (emphasis added)); Green,
568 F.3d at 793-94 (the plaintiff visits the courthouse “on a
weekly basis” for business and avocational purposes and
“cannot avoid” the religious display); O’Connor, 416 F.3d at
1223 (the plaintiff professor and student “were frequently
brought into direct and unwelcome contact” with a religious
display “at a prominent location on campus” (emphasis
added)); Ashbrook, 375 F.3d at 489-90 (the plaintiff “who
travels to and must practice law within [the relevant] court-
room from time to time” and who “has and would continue
to come into direct, unwelcome contact with the Ten Com-
mandments display, the removal of which would, no doubt,
prevent further injury to him” (emphases added)); Glassroth,
335 F.3d at 1292 (“The three plaintiffs are attorneys whose
professional duties require them to enter the Judicial Building
regularly, and when they do so they must pass by the monu-
ment.” (emphases added)); Saladin, 812 F.2d at 692 (the
plaintiffs “regularly receive correspondence on city stationery
bearing the seal [that contains the word ‘Christianity’]”
(emphasis added)); see also Twp. of Wall, 246 F.3d at 266
(noting that it was relevant whether the plaintiff visited a holi-
day display only “to describe the display for this litigation or
whether, for example, he observed the display in the course
of satisfying a civic obligation”).
CATHOLIC LEAGUE v. SAN FRANCISCO 17411
To be sure, courts have “recognized that ‘[t]he practices of
our own community may create a larger psychological wound
than someplace we are just passing through.’ ” Suhre, 131
F.3d at 1087 (alteration in original) (quoting Washegesic, 33
F.3d at 683). Accordingly, “where there is a personal connec-
tion between the plaintiff and the challenged display in his or
her community, standing is more likely to lie.” Id.; see also
City of Plattsmouth, 358 F.3d at 1030 (“That the injuries are
caused by [the plaintiff’s] own City is all the more alienat-
ing.”); City of St. Charles, 794 F.2d at 268 (“Maybe it ought
to make a difference if . . . a plaintiff is complaining about the
unlawful establishment of a religion by the city, town, or state
in which he lives.”). But no court has adopted a per se rule
that the location of a religious display in the plaintiff’s home-
town or home state automatically confers standing on the
plaintiff. See Suhre, 131 F.3d at 1087 (holding that, where the
display is in the plaintiff’s community, “standing is more
likely to lie” only “where there is a personal connection
between the plaintiff and the challenged display” (emphases
added)); Rabun Cnty., 698 F.2d at 1107 (holding that the loca-
tion of the display in the plaintiffs’ home state was one of sev-
eral relevant “factors”). As in all cases, even when the
religious display is in the plaintiff’s hometown, the plaintiff
must establish direct and unwelcome contact with the display.
See, e.g., Suhre, 131 F.3d at 1090 (determining whether the
plaintiff has the requisite direct and unwelcome contact with
the display, even though the display is located in the plain-
tiff’s municipality).
Finally, the injury arises not purely from the psychological
harm of viewing the display, but from the consequence of that
harm. That is, a plaintiff’s negative reaction to a religious dis-
play on public property interferes with the plaintiff’s right to
“ ‘freely use public areas.’ ” Ellis, 990 F.2d at 1523 (quoting
Hewitt, 940 F.2d at 1564); accord Ouachita Parish, 274 F.3d
at 292 (“use or enjoyment of a public facility”); City of
Eugene, 93 F.3d at 619 n.2 (“freely using the area on and
around [the public park]”); Gonzales, 4 F.3d at 1417 (“full use
17412 CATHOLIC LEAGUE v. SAN FRANCISCO
and enjoyment of the public park”); Hawley, 773 F.2d at 740(“impairment of their beneficial use of a public facility which
they frequently use”). “We have repeatedly held that inability
to unreservedly use public land suffices as injury-in-fact.
Such inhibition constitutes ‘personal injury suffered . . . as a
consequence of the alleged constitutional error,’ beyond sim-
ply ‘the psychological consequence presumably produced by
observation of conduct with which one disagrees.’ “ Buono,
371 F.3d at 547 (citations omitted) (ellipsis in original) (quot-
ing Valley Forge, 454 U.S. at 485); see also Barnes-Wallace,
530 F.3d at 784 (“As in Buono, [the plaintiffs] have alleged
injuries beyond ‘the psychological consequence presumably
produced by observation of conduct with which they dis-
agree,’ because their inhibition interferes with their personal
use of the land.” (brackets omitted) (quoting Valley Forge,
454 U.S. at 485)).
B. Resolution No. 168-06 and Alleged Harm to Plaintiffs
Plaintiffs challenge Resolution No. 168-06. They allege
that the resolution “attacks [their] deeply held religious
beliefs,” “stigmatizes Plaintiffs on account of their religious
beliefs,” and “sends a clear message . . . that they are outsid-
ers, not full members of the political community.” Plaintiffs
allege that, as residents of San Francisco and members of the
Catholic Church, the resolution “chill[s] their access to the
government.” “As a result of [the] resolution, Plaintiffs . . .
will curtail their activities to lessen their contact with Defen-
dants, thereby causing further harm.”
In some ways, Plaintiffs’ allegations evince a much
stronger connection to the challenged governmental action
than the plaintiffs’ allegations in Valley Forge. The plaintiffs
in Valley Forge had never visited, and had no other connec-
tion to, the land in question. Here, Plaintiffs reside in San
Francisco, and Defendants operate as the San Francisco
municipal government. There is no geographical separation.
Additionally, Plaintiffs view the resolution as a direct attack
CATHOLIC LEAGUE v. SAN FRANCISCO 17413
on their specific religion: Catholicism. There may be some
stronger connection to the challenged government action
when the action is perceived as a direct attack on one’s own
religion, as distinct from a more general offense that the gov-
ernment is condoning or conveying religious messages with
which one generally disagrees or to which one does not
adhere. I acknowledge that Plaintiffs’ residency and their per-
ception of the government action as attacking their specific
religion distinguish this case in significant ways from the
Supreme Court’s Valley Forge decision.
In other ways, however, the allegations in the complaint
suggest that Plaintiffs are more akin to “concerned bystand-
ers,” Valley Forge, 454 U.S. at 473 (internal quotation marks
omitted), who have suffered no injury “other than the psycho-
logical consequence presumably produced by observation of
conduct with which one disagrees,” id. at 485. The parties do
not dispute that the resolution is entirely non-binding and that
it has no legal effect. It confers no benefits or legal rights. It
imposes no obligations or responsibilities on anyone. It alters
no government process, ordinance, or plan. In short, it does
not do anything, other than to “urge” Cardinal Levada to
withdraw his directive concerning Catholic Charities’ adop-
tion policies. This hortatory resolution is like precatory text in
a statute’s preamble, which plaintiffs lack standing to chal-
lenge unless the text applies to them “in some concrete way.”
Webster v. Reprod. Health Servs., 492 U.S. 490, 506 (1989);
see also id. at 504-07 (discussing this issue generally).
As discussed above, Plaintiffs are not the first to challenge
a governmental policy or provision.8 And, as discussed above,
8
The majority opinion incorrectly asserts that I conclude that this case
does not involve a challenge to a governmental policy or provision. Maj.
op. at 17369-70 n.26. To the contrary, Plaintiffs here challenge a resolu-
tion enacted by Defendants, and I agree completely with the majority that
“an official resolution of the City of San Francisco is indeed a case involv-
ing a specific governmental policy.” Id. (internal quotation marks and
17414 CATHOLIC LEAGUE v. SAN FRANCISCO
the courts have developed consistent requirements for estab-
lishing standing: In order to establish standing, Plaintiffs must
allege that the provision applies to them in some direct and
concrete manner. Plaintiffs’ allegations here do not suffice.
Plaintiffs do not, and could not, claim that they are subject
to the provisions of the non-binding resolution. They do not
claim to be subject to the government’s action—the “urging”
of Cardinal Levada to retract his earlier directive. Instead,
they claim harm from the “message” that the resolution’s
terms “sends” to Plaintiffs. I agree with the District of Colum-
bia Circuit that, “[w]hen plaintiffs are not themselves affected
by a government action except through their abstract offense
at the message allegedly conveyed by that action, they have
not shown injury-in-fact to bring an Establishment Clause
claim.” In re Navy Chaplaincy, 534 F.3d at 764-65.
Plaintiffs here have expressed their deep and genuine
offense. Their status as Catholics and San Francisco residents
distinguishes their concerns, at least to some extent, from the
concerns of others who may view the resolution as offensive.
In the end, however, the resolution carries no legal effect and,
perhaps most importantly, does not apply to Plaintiffs.
Plaintiffs effectively ask us to hold that any person has
standing to challenge any governmental action on Establish-
ment Clause grounds, so long as the plaintiff resides within
the government’s territory and is offended by the action’s
alleged attack on the plaintiff’s religion. As discussed above,
in Part A, a governmental action within one’s own community
suggests that standing is more likely to lie. But the courts
brackets omitted). In text, I apply, as we must, the clear standing require-
ments that we and other courts have developed in cases involving chal-
lenges to governmental policies. The majority opinion fails even to
acknowledge those requirements or, in large degree, even the relevant
cases.
CATHOLIC LEAGUE v. SAN FRANCISCO 17415
have declined to apply a per se rule that those who reside
within the geographic boundaries of the government automat-
ically have standing to challenge the government’s actions.
Instead, the courts have required a showing that the chal-
lenged action actually affects these particular plaintiffs. Reso-
lution No. 168-06 simply does not apply to Plaintiffs.
Nor does the fact that Plaintiffs perceive the resolution as
a direct attack on their specific religion suffice to meet the
“particularized” requirement.9 In that regard, Plaintiffs’ claims
here are indistinguishable from the plaintiffs’ claims in Flora,
692 F.2d at 54. There, the atheist plaintiffs, who resided in
Arkansas, challenged a state constitutional provision that
barred atheists from certain civic opportunities. Id. The Eighth
Circuit held that, unless the plaintiffs could demonstrate that
they had been, or would be, actually subject to the provision
(which they could not), the plaintiffs lacked standing. Id. Cit-
ing Valley Forge, the court rejected the plaintiffs’ theory that,
“as atheists, they have suffered adverse psychological conse-
quences as a result of the continued presence of this section
in the Arkansas Constitution.” Id. Like the Arkansas atheists
in Flora, the San Francisco Catholics here cannot demonstrate
that they are subject to the challenged provision, even though
they allege adverse psychological consequences as a result of
9
It is easy to overstate this distinction. A person who adheres to a reli-
gion other than, for example, Christianity may perceive the government’s
placement of a cross on a hill as a direct negative attack on that person’s
non-Christian religion, rather than as an affirmative endorsement of Chris-
tianity. Precisely for this reason, the courts have treated an endorsement
and a disapproval as two sides of the same coin in the Establishment
Clause context. See, e.g., Lynch, 465 U.S. at 688 (O’Connor, J., concur-
ring) (“Endorsement sends a message to nonadherents that they are outsid-
ers, not full members of the political community, and an accompanying
message to adherents that they are insiders, favored members of the politi-
cal community. Disapproval sends the opposite message.”). Similarly, an
atheist might view the national motto, “In God We Trust,” as an attack on
his or her religious beliefs. But that fact is insufficient to confer standing.
Lefevre, 598 F.3d at 643. I therefore decline to attribute much significance
to this distinction for standing purposes.
17416 CATHOLIC LEAGUE v. SAN FRANCISCO
the resolution’s passage. Accordingly, Plaintiffs do not have
standing.
The same analysis applies to our recent decisions involving
atheist plaintiffs’ challenge to the national motto, “In God We
Trust,” Lefevre, 598 F.3d at 643, and to the inclusion of the
words “under God” in the national pledge of allegiance, Rio
Linda, 597 F.3d at 1016. In those cases, the plaintiffs chal-
lenged not only the federal statute declaring our national
motto and the federal statute adding the words “under God”
to our pledge of allegiance, but the plaintiffs also challenged
the statutes and policies that required that the motto be
inscribed on our coins and currency and that the pledge be
recited in schools. Lefevre, 598 F.3d at 643; Rio Linda, 597
F.3d at 1016. We held that the plaintiffs lacked standing to
challenge the first type of statute: the federal statute declaring
our national motto, Lefevre, 598 F.3d at 643, and the federal
statute adding the words “under God” to our pledge of alle-
giance, Rio Linda, 597 F.3d at 1016. The fact that a statute on
the books made the plaintiff feel like a “political outsider[ ]”
and “inflict[ed] a stigmatic injury” was “insufficient to confer
standing.” Lefevre, 598 F.3d at 643; see also Rio Linda, 597
F.3d at 1016 (holding that, “because the Pledge does not man-
date that anyone say it, [the plaintiff] has no personal injury
to contest its wording in the courts” and therefore lacks stand-
ing to challenge the federal statute declaring the pledge). By
contrast, we held that the plaintiff did have “standing to chal-
lenge the statutes that require the inscription of the motto on
coins and currency . . . given the ubiquity of coins and cur-
rency in everyday life,” Lefevre, 598 F.3d at 642, and that
plaintiff parents of schoolchildren did have standing to chal-
lenge the state statute and school district policy permitting
teachers to lead students through recitation of the pledge of
allegiance, Rio Linda, 597 F.3d at 1016. Those statutes had a
direct effect on the plaintiffs.
Here, Plaintiffs challenge the resolution only. As in Lefevre
and Rio Linda, Plaintiffs allege that the governmental action
CATHOLIC LEAGUE v. SAN FRANCISCO 17417
makes them feel like political outsiders and stigmatizes them
because of their religious beliefs. And, as in Lefevre and Rio
Linda, those allegations are insufficient. Plaintiffs’ contact
with the resolution here is no greater than the plaintiffs’ con-
tact with the federal statutes at issue in Lefevre and Rio Linda.
In those cases, we held, of course, that the plaintiffs had
standing to challenge other statutes and policies—those stat-
utes that put the plaintiffs in direct and unwelcome contact
with the religious statement or religious exercise. But, in this
case, there are no such other statutes or policies and no such
direct and unwelcome contact. Clearly, Defendants have in no
way inscribed the resolution on an item of everyday life such
that Plaintiffs must encounter it, and Defendants have in no
way required Plaintiffs to participate in a daily recitation of
the resolution. Plaintiffs’ challenge is limited to the resolution
itself, which sets forth Defendants’ policy statement on a mat-
ter of concern to the City—the precise parallel to the federal
statutes setting forth our national motto and pledge of alle-
giance. Just as the plaintiffs’ deep offense at the national
motto and pledge of allegiance could not confer standing, nei-
ther can Plaintiffs’ deep offense at Defendants’ resolution
confer standing here.
In conclusion, Plaintiffs’ allegations are, in all relevant
respects, identical to the plaintiffs’ allegations in our recent
decisions in Rio Linda and Lefevre and to the plaintiffs’ alle-
gations in Flora. Just as the allegations in those cases were
insufficient to confer standing, so too are Plaintiffs’ allega-
tions here.
The majority fails to grapple with our holdings in Rio Linda
and Lefevre. In particular, our holding in Lefevre, 598 F.3d at
643, applies with equal force here: “Although [Plaintiffs]
allege[ ] the [resolution] turns [Catholics] into political outsid-
ers and inflicts a stigmatic injury upon them, an ‘abstract stig-
matic injury’ resulting from such outsider status is insufficient
to confer standing.” The majority distinguishes those cases,
17418 CATHOLIC LEAGUE v. SAN FRANCISCO
and all other precedent, only on the ground that this case
involves an unambiguous condemnation of a specific religion,
while previous ones involved “vague and general religiosity.”
Maj. op. at 17370 n.26. As an initial matter, despite the great
number of previous decisions involving challenged govern-
mental actions, the majority cites not a single one in which the
ambiguity or plainness of the perceived condemnation or
endorsement of religion is even mentioned by a reviewing
court for purposes of the standing inquiry. I do not, of course,
question that Plaintiffs view the resolution as an attack on
their religion. Similarly, though, courts in previous cases have
not questioned that the plaintiffs viewed the challenged gov-
ernmental action as an attack on, or an endorsement of, a spe-
cific religion. Whether the members of the reviewing court
perceive the alleged attack or endorsement as “plain” or “am-
biguous” seems fraught with difficulty. And, in many of the
cases I have cited, I see no ambiguity. For example, the stat-
ute declaring our motto as “In God We Trust” is an unambig-
uous endorsement of theistic religions at the expense of the
beliefs of atheists. Similarly, the placement of a cross on a
city’s seal is an unambiguous endorsement of Christianity at
the expense of non-Christian religions. Yet, in Lefevre and
Vasquez, and in all our other previous cases, the ambiguity or
plainness of the challenged governmental action played no
part in the analysis of standing.
Plaintiffs next argue, by way of analogy, that the resolution
is similar to a religious display. They contend that, because
they have been exposed to the “display,” they have alleged
sufficient “contact” with the “display” to constitute an injury
in fact. The complaint does not allege the manner in which
Plaintiffs encountered the resolution or the form of “display”
to which Plaintiffs object, but it appears that Plaintiffs mean
that they have read the resolution. That fact does not confer
standing.
To begin with, the resolution is not a display; it is an act
(albeit a non-binding act) of a legislative body. Had Defen-
CATHOLIC LEAGUE v. SAN FRANCISCO 17419
dants reproduced the resolution, for example, in giant letters
above the entrance to City Hall, Cnty. of Montgomery, 41
F.3d at 1158, or chiseled the resolution into a block of stone
eight feet tall and three feet wide in a public park, Green, 568
F.3d at 789-90, the resolution’s representation in those forms
would constitute a religious display. As it is, though, the com-
plaint fails to allege that this resolution has received greater
prominence than any other. The resolution was posted, like
every other resolution, on Defendants’ website. See
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions
06/r0168-06.pdf.
The mere existence of an enactment on the books (or vir-
tual books) is not enough. In the religious display context, a
plaintiff has standing when he or she encounters the display
with some level of frequency or regularity during the course
of the plaintiff’s typical routine. It is that “direct and unwel-
come contact” with the display that confers standing on the
plaintiff. Here, Plaintiffs read the resolution. But apart from
that initial contact, Plaintiffs allege no facts to suggest that
they ever would have reason to read the resolution again, as
part of their regular routine or otherwise (except to facilitate
this litigation). In summary, even if I construed the resolution
as a religious display, which it is not, Plaintiffs could not meet
the “direct and unwelcome contact” requirement that courts
consistently have applied in religious display cases.
In this regard, our recent decision in Caldwell, 545 F.3d
1126, is instructive. There, the plaintiff objected to a webpage
on a government website. Id. at 1128. The plaintiff argued
that,
like the plaintiffs in [religious display] cases, she
also came into direct contact with a religious symbol
on property owned by the government which she
finds offensive; and that, just as the inability of
plaintiffs in those cases freely to use public land suf-
ficed as injury in fact, so too should it suffice that
17420 CATHOLIC LEAGUE v. SAN FRANCISCO
she is inhibited from freely using a government
resource without running into religious symbols and
theological statements which offend her.
Id. at 1131. We rejected her argument, because her interest in
using the website was no different than anyone else’s: Her
interest was “not sufficiently differentiated and direct to con-
fer standing on her . . . . An interest in informed participation
in public discourse is one we hold in common as citizens in
a democracy.” Id. at 1133. Judge Fletcher wrote separately “to
elaborate more fully why Caldwell lacks standing.” Id. (B.
Fletcher, J., concurring). Judge Fletcher held that the plaintiff
could not establish an injury in fact because:
Caldwell also does not allege that her contact with
the offensive views expressed on the [government]
website was “frequent and regular” or “unwelcome.”
[Vasquez, 487 F.3d at 1251-52]. There is no allega-
tion that Caldwell had any reason to visit the offend-
ing web page more than once. Nor did the single
offending web page prevent Caldwell from freely
using the rest of the [Understanding Evolution] web-
site: the site comprises approximately 840 pages,
each of which can be viewed without having first
viewed the offending page.
Id. at 1134 (one citation omitted).
The same reasoning—of both the opinion and the
concurrence—applies here. Plaintiffs’ interest in reading the
resolutions of their municipal government is no different than
anyone else’s interest and, therefore, “is not sufficiently dif-
ferentiated and direct to confer standing.” Id. at 1133. Addi-
tionally, Plaintiffs here do not allege that their contact with
the resolution was anything more than a one-time occurrence,
and “[t]here is no allegation that [Plaintiffs] had any reason to
visit the offending web page more than once.” Id. at 1134 (B.
Fletcher, J., concurring). In sum, Plaintiffs’ allegations do not
CATHOLIC LEAGUE v. SAN FRANCISCO 17421
constitute an injury “other than the psychological conse-
quence presumably produced by observation of conduct with
which one disagrees.” Valley Forge, 454 U.S. at 485. Plain-
tiffs therefore lack standing.
Plaintiffs next protest that their allegations constitute more
than pure psychological harm, because they also allege that
Defendants’ abuse of power has “chill[ed] their access to the
government. As a result of [the] resolution, Plaintiffs . . . will
curtail their activities to lessen their contact with Defendants,
thereby causing further harm.” Plaintiffs refer us to cases in
which courts have held that plaintiffs have standing because
of an affirmative change in behavior to avoid a particular reli-
gious display. See, e.g., Ellis, 990 F.2d at 1523 (holding that
the plaintiffs have standing because they allege that they
avoid a public park where a cross is located). Plaintiffs argue
that, like the plaintiffs in those cases who avoided public
lands to avoid a religious display, Plaintiffs here have stand-
ing because their access to government has been “chill[ed]”
and they “will curtail their activities to lessen their contact
with Defendants.” I am unpersuaded.
Plaintiffs’ allegations suffer from lack of specificity. It is
unclear, for instance, when Plaintiffs “will” curtail their activ-
ities. It also is unclear what contacts Plaintiffs maintain with
Defendants and how, if at all, they “will curtail their activities
to lessen [that] contact.” These vague allegations are a far cry
from the allegations sufficient to confer standing in religious
display cases, in which the plaintiff alleges that he or she reg-
ularly sees the offending display and explains how his or her
normal routine has changed so as to avoid those encounters.
See, e.g., City of St. Charles, 794 F.2d at 269 (holding that
one plaintiff has standing because “she detours from her
accustomed route to avoid the [lighted] cross”); see also
Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986)
(per curiam) (“Although we must, in general, accept the facts
alleged in the complaint as true, wholly vague and conclusory
allegations are not sufficient to withstand a motion to dis-
17422 CATHOLIC LEAGUE v. SAN FRANCISCO
miss.”); Vasquez, 487 F.3d at 1249 n.4 (noting that the district
court disregarded an allegation that the plaintiff had “altered
his behavior,” but declining to decide the issue because other
allegations sufficed to confer standing (brackets omitted)).
Moreover, if Plaintiffs’ vague allegations of some unspecified
avoidance of governmental entities were sufficient to confer
standing to challenge a proclamation of that governmental
entity, then any plaintiff residing within the boundaries of the
governmental body could satisfy the “injury in fact” require-
ment simply by alleging, in general, a threatened curtailment
of activities with the governmental entity. No court has
accepted such a sweeping proposition. Cf. Laird v. Tatum,
408 U.S. 1, 13-14 (1972) (“Allegations of a subjective ‘chill’
are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm; the federal
courts established pursuant to Article III of the Constitution
do not render advisory opinions.” (internal quotation marks
omitted)).
Plaintiffs also point to the primary reason for the standing
doctrine: “ ‘The essence of the standing inquiry is whether the
[plaintiffs] have alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitu-
tional questions.’ ” Larson, 456 U.S. at 238-39 (emphasis
added) (quoting Duke Power, 438 U.S. at 72). Plaintiffs con-
tend that their deep opposition to the resolution is patent and
genuine and that their determined adverseness to the resolu-
tion satisfies the basic purpose of the standing doctrine: They
are fervent advocates who provide a sharp presentation of the
issues.
I do not question the commitment of Plaintiffs to this case
or the skill with which they have presented, and undoubtedly
would continue to present, the issues. But the Supreme Court
expressly has rejected passion as a substitute for Article III
standing. “[S]tanding is not measured by the intensity of the
CATHOLIC LEAGUE v. SAN FRANCISCO 17423
litigant’s interest or the fervor of his advocacy. ‘[T]hat con-
crete adverseness which sharpens the presentation of issues,’
Baker v. Carr, 369 U.S. [186,] 204 [1962], is the anticipated
consequence of proceedings commenced by one who has been
injured in fact; it is not a permissible substitute for the show-
ing of injury itself.” Valley Forge, 454 U.S. at 486; see also
Smelt, 447 F.3d at 685 (“Motivation alone is not enough [to
satisfy standing requirements].”).
Plaintiffs also suggest that they must have standing to chal-
lenge the resolution because, if they do not have standing, no
one would have standing, and that result cannot be correct. I
disagree with Plaintiffs’ major premise and their minor prem-
ise. It is a bedrock principle that the federal courts are courts
of limited jurisdiction. A wide variety of doctrines, including
standing, prevent us from hearing cases—even otherwise mer-
itorious cases—because of the constitutional limits on our
authority. As a general matter, I simply cannot accept an argu-
ment that begins with the premise that the federal courts must
have jurisdiction over a dispute. More specifically, the
Supreme Court has roundly rejected Plaintiffs’ argument in
this very context: “ ‘The assumption that if respondents have
no standing to sue, no one would have standing, is not a rea-
son to find standing.’ ” Valley Forge, 454 U.S. at 489 (alter-
ation omitted) (quoting Schlesinger v. Reservists Comm. to
Stop the War, 418 U.S. 208, 227 (1974)).
Perhaps most importantly, however, Plaintiffs are wrong to
suggest that, if they lack standing, then it is clear that no one
would have standing to challenge the resolution at issue. To
the contrary, it is likely that the parties who are personally the
subjects of the resolution, such as Cardinal Levada, Arch-
bishop Niederauer, and Catholic Charities, could demonstrate
cognizable harm. The record is silent as to why those parties
have not joined as plaintiffs. But their interests, which likely
are directly affected, matter. “The Art. III aspect of standing
. . . reflects a due regard for the autonomy of those persons
likely to be most directly affected by a judicial order.” Valley
17424 CATHOLIC LEAGUE v. SAN FRANCISCO
Forge, 454 U.S. at 473; see also id. at 489-90 (holding that
the Court was “unwilling to countenance” a theory whereby
“[t]he existence of injured parties who might not wish to bring
suit becomes irrelevant”). For Plaintiffs, however, the resolu-
tion carries no legal or direct, particularized, concrete, or
practical effect. Accordingly, Plaintiffs cannot establish “in-
jury in fact.”10
Plaintiffs lack standing because no individual Plaintiff can
establish “injury in fact.” For that reason and because the
complaint fails to allege that any party directly targeted by the
resolution is a member of Catholic League, Catholic League
likewise lacks associational standing. See Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 343 (1977) (holding
that, to establish associational standing, an organization must,
10
Although we need not reach the issue, we note in addition that Plain-
tiffs almost certainly cannot satisfy the “redressability” requirement.
Lujan, 504 U.S. at 560-61. The resolution exists; it is on the books; and
it is an expression of the policy preferences of San Francisco. This court
is powerless to change the opinion of the Board of Supervisors on the sub-
ject of same-sex adoptions. Even if we declared the resolution unconstitu-
tional, the only real effect of that declaration on Plaintiffs would be to
make Plaintiffs happy. Just as the negative psychological consequence of
the government’s action is insufficient to satisfy the “injury in fact”
requirement, the positive psychological consequence of the court’s action
is likewise insufficient to satisfy the “redressability” requirement. Hints of
this aspect of redressability are found within the case law. See, e.g., Ash-
brook, 375 F.3d at 489-90 (holding that the plaintiff “has and would con-
tinue to come into direct, unwelcome contact with the [religious] display,
the removal of which would, no doubt, prevent further injury to him”);
Glassroth, 335 F.3d at 1292-93 (“[A] favorable decision will likely redress
[the plaintiffs’] injuries. If [the defendant] is required to remove the [reli-
gious display] from the public area of the Judicial Building, the plaintiffs
will no longer have to observe it or take actions to avoid going into the
building.”); Ouachita Parish, 274 F.3d at 293 (“[I]t is certain that a find-
ing of unconstitutionality would redress the plaintiffs’ injury, as it would
. . . end[ ] the practice of verbal prayer in their schools.”); see also Dore-
mus, 342 U.S. at 433 (holding that the plaintiffs could not maintain suit
because the student had graduated from the public school and “no decision
we could render now would protect any rights she may once have had”).
CATHOLIC LEAGUE v. SAN FRANCISCO 17425
among other things, demonstrate that its members would oth-
erwise have standing to sue in their own right).
C. Municipal Taxpayer Standing
Plaintiffs also allege that they are municipal taxpayers of
San Francisco and that they “have been injured by the abuse
of government authority and the misuse of the instruments of
government to criticize, demean, and attack their religion and
religious beliefs.”11 Plaintiffs do not allege any specific
expenditure of public funds, and none is apparent from the
record. That being so, Plaintiffs cannot establish taxpayer
standing. See Doremus, 342 U.S. at 433 (holding that munici-
pal taxpayers do not have standing because “[t]here is no alle-
gation that this [government-sponsored] activity is supported
by any separate tax or paid for from any particular appropria-
tion or that it adds any sum whatever to the cost of conducting
the school”); id. at 434 (“It is apparent that the grievance
which it is sought to litigate here is not a direct dollars-and-
cents injury but is a religious difference.”); Barnes-Wallace,
530 F.3d at 786 (holding that “municipal taxpayers must show
an expenditure of public funds to have standing” (citing
Madison, 177 F.3d at 793-97)).
CONCLUSION
I recognize that the failure to reach an important, disputed
constitutional issue leaves something to be desired. But I can-
not ignore the constitutional bounds of our jurisdiction: “Arti-
cle III, which is every bit as important in its circumscription
of the judicial power of the United States as in its granting of
that power, is not merely a troublesome hurdle to be over-
come if possible so as to reach the ‘merits’ of a lawsuit which
11
Although Plaintiffs have never argued that they have standing as
municipal taxpayers, we must consider our jurisdiction independently of
a party’s arguments. Because they allege in the complaint that they are
taxpayers of San Francisco, I address municipal taxpayer standing.
17426 CATHOLIC LEAGUE v. SAN FRANCISCO
a party [or, as the case may be, both parties] desires to have
adjudicated . . . .” Valley Forge, 454 U.S. at 476. We lack
subject matter jurisdiction. I therefore concur in the judgment
affirming the district court’s order dismissing the complaint.