[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday held [opinion, PDF] that a San Francisco resolution [text, PDF] urging the Vatican to withdraw a directive against same-sex adoptions does not violate the Establishment Clause. The resolution was passed in response to the Vatican's directive that Catholic social service agencies should not place children in same-sex households. The court, in an opinion by Judge Richard Paez, affirmed a lower court's dismissal of the suit brought by the Catholic League for Religious and Civil Rights [advocacy website]. While the Board of Supervisors for the City and County of San Francisco [official website] asserted that the resolution was passed for secular reasons, the Catholic League argued that the resolution was designed to attack Catholic beliefs. The Court agreed with the Board's analysis, saying:
the objective observer would conclude that the Boards purpose in adopting the Resolution was to respond to a public action that would affect both its gay and lesbian constituents, as well as the children in the City and Countys jurisdiction. The Boards focus was on same-sex couples, not Catholics.
In a concurring opinion, Judge Marsha Berzon wrote that while the result is in line with current Establishment Clause jurisprudence, she was troubled by how close the San Francisco resolution came to the establishment of an anti-Catholic stance.
Adoption by same-sex couples has recently become a controversial issue. In November, a Florida court ruled [opinion, PDF; JURIST report] that a ban on adopting children for same-sex couples was unconstitutional, allowing a couple to adopt two children. The US Court of Appeals for the Eleventh Circuit [official website] upheld [opinion, PDF] the same Florida statute in 2005 as being rationally related to protecting the interests of children, and the US Supreme Court declined to review [WP report] that decision. In November, Arkansas voters approved [JURIST report] a ballot measure [JURIST report] prohibiting gays, lesbians, and other unmarried cohabiting couples from becoming either foster or adoptive parents.