Marty Lederman wrote:
Below is the text of the Resolution,
at least according to one newspaper. I don't know whether it's an
Establishment Clause violation. (It's a lot less religious in
substance than, say, the presidential Thanksgiving and Prayer Day
proclamations with which we're all familiar.) Apart from
constitutional doctrine, I don't think there's anything especially
wrong with a city condemning a church's policy if that policy is
perceived as harmful to the city's policies and morally objectionable
-- and I agree that this policy is.
While I agree about this particular policy that is being objected to,
would I (or we) feel the same way if it was reversed? If, instead, the
Board had put out a resolution against gay adoptions and condemned a UU
church's position in favor of them, would we still think there's
nothing wrong with it? I honestly don't know.
I am, however, troubled by the first
"Whereas" clause, with its xenophobic echoes of the anti-Catholicism of
the Kennedy era ("a foreign country, like the Vatican, meddles with . .
. "), and by the unfortunate use of the word "unacceptable" in the
second Whereas clause to describe the Church's statement about what
Catholic agenices should do: The Vatican statement might be disturbing
and objectionable -- even worthy of condemnation -- but 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 -- Would it be unacceptable for Wisconsin to urge
the Amish to keep their kids in school for another year? For the
United States to urge Bob Jones University to stop discriminating? For
the Surgeon General to urge parents to cease the practice of religious
circumcision? (I'm interested here not only -- not primarily -- in the
constitutional question, but more in the question of propriety and good
government.)
Those are very interesting questions. I wonder if any of us would
answer them consistently in the real world.
Ed Brayton
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