These questions are posed to no one in particular, so everybody is free to respond -- or not.
Does it matter that Catholic Charities is what Noonan and Gaffney might call a "double duty" organization or institution? That is, the spheres or both church and state have grown so that they frequently overlap. The resolution does not attack or criticize Church teaching regarding the liturgy or the sacraments. One could say that matters that traditionally have been within the religious sphere are not the subject of the resolution. (It is precisely when the state does concern itself with these matters that we have Establishment, as, for example, with the efforts of the Tudor and Stuart states to outlaw the doctrine of Transubstantiation.) The resolution attacks the area of "overlap," the rendering of certain social services. It is hard to make out a clear EC violation in such a case, or at least I think so. On the other hand, the resolution -- unwisely in my view -- appears to attack the Church's ecclesiology, the very idea of being in communion with the See of Rome. We know that English Protestants, beginning with the Tudor Sate, sought to attack the authority of the See of Rome, as a matter of state policy. Again, that is the stuff of establishment, it seems to me. So perhaps one might ask whether the "overlap" stuff in the resolution, which probably does not raise EC concerns, trumps the ecclesiology stuff, or whether the ecclesiology stuff in the resolution trumps the "overlap" stuff. Perhaps it matters that there is strong whiff of traditional Protestant Empire anti-Catholicism in this resolution. Is that fact, standing by itself, an adequate basis for concluding that the resolution presents serious EC problems? (This is another way of saying that the impermissible elements of the resolution trump the permissible elements.) Not entirely in jest, one can ask whether the Lynch/Allegheny -- or the McCreary/Van Orden -- approach to context ought to control the analysis here. Thus, does the "overlap" stuff function essentially like the plastic reindeer, the Santa Claus figure and striped candy canes? Does the "overlap" stuff function essentially like the other monuments in Austin (but not like the documents in Kentucky that finally showed up)? (This is another way of saying that the permissible elements of the displays trump the elements that would be impermissible if displayed alone or in different contexts.) -----Original Message----- From: Alan Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, April 06, 2006 12:59 PM To: Law & Religion issues for Law Academics Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution I think Greg's point has more force to it than some other list-members suggest. But there are two counter-arguments that might mitigate it. 1. I wonder if there is there a "secular purpose" analogy that can be drawn here? Just as government can not pass laws enforcing religiously based moral principles or promote messages for exclusively religious reasons, but can do either,in many circumstances, when there is a secular reason for doing so -- perhaps a similar argument applies to criticisms of religious beliefs. If the government's criticism reflects a religious purpose (denying the truth of a religious belief on theological grounds), it violates the Establishment Clause. But if the argument is that the religious belief should be criticized for secular reasons, it doesn't. I'm not committed to this idea. I just thought of it. 2. A common argument raised against claims that government expression of religious messages or promotion of religious displays "endorses" religious beliefs is that the government is merely acknowledging what many of its constituents believe to be important and true. It isn't endorsing or affirming the truth of anything. Again, can a similar argument be raised here -- that the Board is simply acknowledging that many people in SF hold certain beliefs. I have never been impressed by this argument when it is used to refute claims of endorsement -- but if it works in one situation, it arguably applies in the other as well. (Of course, the Board could have expressed itself using different language if it was only acknowledging what many SF residents believe.) Constitutional arguments aside, I see little of value in resolutions like this. Does anyone think resolutions like this serve any useful purpose? Would it serve any useful purpose if a city in which a majority of the residents were religious conservatives adopted a resolution condemning gay organizations in the city for saying or doing things that they construed to be anti-religious. Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gregory Wallace Sent: Thursday, April 06, 2006 7:59 AM To: Law & Religion issues for Law Academics Subject: Re: San Francicso Board of Supervisors Catholic Charities Resolution It seems to me that it¹s one thing for government to engage in actions that are inconsistent with religious doctrine or practice (i.e., you go your way, we¹ll go ours), but it¹s quite another for government to explicitly denounce religious doctrine as discriminatory, defamatory, insulting, meddlesome, hateful, callous, insensitive, ignorant, absolutely unacceptable, and deserving of defiance. At what point does this constitute a government declaration that religious doctrine is false and untrue, something I thought government is incompetent (and forbidden) to do? Greg Wallace Campbell University School of Law > From: Jean Dudley <[EMAIL PROTECTED]> > Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Date: Thu, 6 Apr 2006 07:29:28 -0700 > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Subject: Re: San Francicso Board of Supervisors Catholic Charities Resolution > > > On Apr 6, 2006, at 2:26 AM, Marty Lederman wrote: > > "...it's not really for a municipality to say whether a decree to > Catholic agencies is or is not "acceptable," is it? (And the fifth > clause is a bit odd, if not silly, because I assume Cardinal Levada > does not make any pretense of being a "representative" of San > Francisco.) >> >> Having said all that, I think the most interesting and difficult >> provision in the resolution, certainly from a constitutional >> perspective, is the first part of the final clause, urging local >> Catholics to "defy" the Church's decrees. I'm sure many people on >> this list will conclude that that is unacceptable, but I'm not so sure > > I think we have an interesting question right here: Who is allowed to > find something unacceptable? The representatives of a municipality, I > should think, are indeed qualified to state that something is > unacceptable for that particular municipality. > > As for those of us on the list who find the call to defy unacceptable, > well, they're welcome to their opinion. However, they cannot dictate > that to the municipality, IMO. > > Jean Dudley > http://jeansvoice.blogspot.com > Future Law Student > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
