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High-profile issues involving sexual orientation remain at the forefront of public debate, and rhetoric on both sides remains emotionally charged, even inflammatory - no more so than in the case of Catholic League for Religious and Civil Rights v. City and County of San Francisco. In 2006, following a directive from, the Catholic Church to stop placing children for adoption in same-sex households, the San Francisco Board of Supervisors responded by unanimously passing Resolution No. 168-06, a vehement condemnation of the Church for its position on same-sex adoption. Although the Ninth Circuit rejected a Catholic civil rights organization's case against the City and the Supreme Court denied certiorari, the constitutionality of the Resolution under the First Amendment's Establishment Clause remains unsettled: the Ninth Circuit split evenly on the merits, reflecting the muddled state of the Supreme Court's Establishment Clause jurisprudence. This Note analyzes this checkered jurisprudence - focusing on the Court's inconsistent application of the Lemon and endorsement tests - and proposes an analytical framework for expressive government action to find for the Resolution's constitutionality.
1. INTRODUCTION
The Catholic Church's hostility to homosexuality is as enduring and well known as the City and County of San Francisco's championing of gay rights. Neither side has shied away from confrontation over its beliefs, nor hesitated to wield the most powerful language at its disposal to make its point, culminating most recently in Catholic League for Religious and Civil Rights v. City and County of San Francisco.1 Four days after the Catholic Church announced that it would stop placing children in need of adoption with same-sex households in San Francisco,2 the San Francisco Board of Supervisors, the legislative body of the City and County, unanimously passed non-binding Resolution No. 168-06, vehemently condemning the Catholic Church for its position on same-sex adoption.3 In response, the Catholic League for Religious and Civil Rights - the nation's largest Catholic civil rights organization - and two Catholic residents of San Francisco sued the city for violating the Establishment Clause of the First Amendment.4
The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion,"5 and is applicable to the states under the Due Process Clause of the Fourteenth Amendment.6 Although the Supreme...