KLEINFELD, Circuit Judge:
A majority of the court has concluded that the plaintiffs have standing. A separate majority, for differing reasons, affirms 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. 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 CLIFTON, 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.
We address whether Catholics and a Catholic advocacy group in San Francisco
Pope Paul III established the Congregation for the Doctrine of the Faith a half millennium ago.
San Francisco immediately responded with official hostility. The San Francisco Board of Supervisors adopted the resolution giving rise to this lawsuit. The resolution urges the Cardinal to withdraw his instructions; denounces the Cardinal'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:
Plaintiffs sued the City, claiming that this official government resolution violates
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 government message of disapproval and hostility toward their religious beliefs. It "sends a clear message," they plead, "that they are outsiders, not full members of the political community." 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 municipality 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.'"
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
The constitutional requirement of standing has three elements: (1) the plaintiff must have suffered an injury-in-fact— 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.
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 disfavored claimants from even getting their claims considered. Without neutrality, the courts themselves can become accessories to unconstitutional endorsement or disparagement. Standing is emphatically not a doctrine for shutting the courthouse door to those whose causes we do not like. Nor can standing analysis, which prevents a claim from being adjudicated for lack of jurisdiction, be used to disguise merits analysis, which determines whether a claim is one for which relief can be granted if factually true.
Standing was adequate for jurisdiction in Establishment Clause cases in the Supreme Court in the following contexts: prayer at a football game,
We have concluded that standing was established in cases involving displaying crosses on government land,
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.
One has to read the whole Valley Forge sentence quoted, and not stop at "psychological consequence," to understand it. A "psychological consequence" does not suffice as concrete harm where it is produced merely by "observation of conduct with which one disagrees." But it does constitute concrete harm where the "psychological consequence" is produced by government condemnation of one's own religion or endorsement of another's in one's own community. For example, in the school prayer and football game cases, nothing bad happened to the students except a psychological 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 Commandments or their religious basis, except psychological consequences. What distinguishes the cases is that in Valley Forge, the psychological consequence was merely disagreement with the government, but in the others, for which the Court identified a sufficiently concrete injury, the psychological consequence was exclusion or denigration on a religious basis within the political community.
Plaintiffs allege that they are directly stigmatized by San Francisco's actions. They allege that the stigmatizing resolution leaves them feeling like second-class citizens of the San Francisco political community, and expresses to the citizenry of San Francisco that they are. The cause of the plaintiffs' injury here is not speculative: it is the resolution itself. Plaintiffs allege that their "Sacred Scripture" "presents homosexual acts as acts of grave depravity," and that "Catholic tradition has always declared that homosexual acts are intrinsically disordered." Plaintiffs believe
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 resolution; (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 curtail their political activities to lessen their contact with defendants.
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."
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 person's standing in the political community."
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 governments 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:
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 Hialeah, where the Court notes that its Establishment Clause cases "have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general."
Though much criticized,
The municipality argues that its purpose was not to condemn Catholicism, but rather to foster equal treatment of people 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 government 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 heterosexual couples." San Francisco is entitled to take that position 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 resolutions condemning discrimination against homosexuals and anti-homosexual speech in Russia,
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...."
As for entanglement, the resolution explicitly entangles itself in church governance. The City would entangle itself with judicial hierarchy, albeit not unconstitutionally, by urging 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 Congregation 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.
Lemon requires government to satisfy all three prongs to avoid an Establishment Clause violation.
The Establishment Clause might arguably have been limited, 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.
No practical or fair reading could construe the Establishment 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 defenseless adherents, the risk of serious consequences cannot be disregarded.
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.
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 religious orthodoxy and condemn heresy on homosexuality, or anything else. "[N]either Pagan nor Mahometan, nor Jew, ought to be excluded from the civil rights of the commonwealth because of his religion."
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
SILVERMAN, Circuit Judge, with whom THOMAS and CLIFTON, Circuit Judges, join, concurring:
I agree with Judge Kleinfeld that the plaintiffs have standing 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 government 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 predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We have previously applied the tripartite Lemon test to governmental expressions of alleged religious 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 resolution 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 significance 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 explicitly 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 "presumed 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 predominantly 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 Francisco 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 couples). 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 Francisco, the
Under Lemon's second prong (the effect prong), an objectively reasonable observer familiar with the history of the government practice at issue here would conclude that the primary effect of the resolution was to promote same-sex adoption. See Am. Family, 277 F.3d at 1122. Read as a whole, see id., the resolution's primary message is that "same-sex couples are just as qualified to be parents as are heterosexual couples" 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, incendiary 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 Supervisors did not violate the Establishment Clause by passing 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 message of intolerance. See Am. Family, 277 F.3d at 1119-20. One of the coalition's ads, placed in the San Francisco Chronicle, 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. Otherwise, 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 nonreligious 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,
I would affirm.
GRABER, Circuit Judge, joined by KOZINSKI, Chief Judge, and RYMER, MICHAEL DALY 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 Defendants 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 resolution violates the Establishment Clause of the First Amendment 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 services, 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 demonstrate a concrete and particularized injury caused by the passage of Resolution No. 168-06. But the resolution plainly applies (albeit in a non-binding, hortatory way) only to persons 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 entities 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 entities 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.
Catholic Charities is an agency of the San Francisco Archdiocese of the Catholic Church. It operates as a non-profit provider of social services in the Bay Area. Until 2006, Catholic Charities' services included placing children with adoptive 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 Catholic 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 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 declaration that this anti-Catholic resolution is unconstitutional, and a permanent injunction enjoining this and other official resolutions, pronouncements, or declarations against Catholics and their religious beliefs." In the complaint, Plaintiffs identify themselves and their injuries as follows:
(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 Establishment 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
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).
Before reaching the merits of any case, including an Establishment Clause challenge, we must ensure that the plaintiff has Article III standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (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, 115 S.Ct. 2431, 132 L.Ed.2d 635 (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, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
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, 124 S.Ct. 2301 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Familiar though the requirements may be, the Supreme Court also has cautioned that standing is not a precise doctrine. See id. at 11, 124 S.Ct. 2301 ("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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (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,
The Supreme Court has made clear that this sort of harm—injury to interests of a spiritual nature—can suffice to establish 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, 90 S.Ct. 827, 25 L.Ed.2d 184 (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 federalcourt resolution of Establishment Clause challenges. Valley Forge, 454 U.S. at 485, 102 S.Ct. 752.
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 controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Larson v. Valente, 456 U.S. 228, 238-39, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (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, 102 S.Ct. 752. "[A]t an irreducible minimum, Art. III requires the [plaintiff] to `show that he personally has suffered some actual or threatened injury....'" Id. at 472, 102 S.Ct. 752 (emphasis added) (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)); see also Lujan, 504 U.S. at 560 & n. 1, 112 S.Ct. 2130 (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, 102 S.Ct. 752 (emphasis added) (quoting Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). The requirement of a direct and personal injury in part "reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order." Id.
The plaintiffs in Valley Forge maintained that the Court's earlier cases had held "that any person asserting an Establishment Clause violation possesses a `spiritual stake' sufficient to confer standing." Id. at 486 n. 22, 102 S.Ct. 752. The Court disagreed and illustrated the plaintiffs' error by reference to two cases raising challenges to required Bible readings in public schools: School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); and Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In Doremus, the Court lacked jurisdiction because the student had graduated but, in Schempp, the student was still in school, so the Court held that the plaintiffs had standing. Compare Doremus, 342 U.S. at 432-33, 72 S.Ct. 394, with Schempp, 374 U.S. at 224 n. 9, 83 S.Ct. 1560. 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, 102 S.Ct. 752; see also Schempp, 374 U.S. at 224 n. 9, 83 S.Ct. 1560 ("The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed.").
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 psychological consequence presumably produced by observation of conduct with which one disagrees."
The requirement that the plaintiff demonstrate that the policy 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
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 1050. In no way do I suggest that these cases do not "retain their vitality" or that they "are overruled." Id. To the contrary, 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 conclusion 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 the majority opinion.
Furthermore, the list in the majority opinion identifies the constitutional issues that either the Supreme Court or we have addressed in an earlier case. Maj. op. at 1049-50. The majority then concludes that, because the courts have addressed those issues, surely a finding of standing in this case is consistent with those cases. See id. at 1050 ("If we 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 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.
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, 102 S.Ct. 1673 (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'
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, 83 S.Ct. 1560 (daily scripture readings in public school); Doremus, 342 U.S. at 430, 72 S.Ct. 394 (same); Rio Linda, 597 F.3d at 1012-13 (recitations of the pledge of allegiance in public school); Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1266 (11th Cir.2008) (invocations 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 graduation); 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, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (student prayers at high school football games); Lee v. Weisman, 505 U.S. 577, 580-83, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (prayers at graduation ceremonies); Wallace v. Jaffree, 472 U.S. 38, 40-42, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (school prayer and meditation); Engel v. Vitale, 370 U.S. 421, 422-23, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (school prayer).
The Eighth Circuit considered an interesting combination of these two extremes
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 recitation 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 ceremony would include an invocation and benediction constituted some personal contact with an endorsement of religion. Id. at 609-10. Nevertheless, the court concluded that the plaintiffs 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.
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, ___ U.S. ___, 130 S.Ct. 1687, 176 L.Ed.2d 180 (2010); Caldwell v. Caldwell, 545 F.3d 1126, 1128 (9th Cir.2008) (religious statements on public university's website), cert. denied, ___ U.S. ___, 129 S.Ct. 1617, 173 L.Ed.2d 995 (2009); Barnes-Wallace v. City of San Diego, 530 F.3d 776, 783 (9th Cir.2008) (order) (Boy Scout symbols in public park), cert. denied, ___ U.S. ___, 130 S.Ct. 2401, 176 L.Ed.2d 922 (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 outdoor 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 relevant 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 display 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 Commandments in county courthouse);
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, affirmative 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.
A plaintiff who challenges a religious display meets the "direct and unwelcome contact" requirement by demonstrating 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 example, in Vasquez, 487 F.3d at 1251-52, the plaintiff challenged the existence of a cross on a county seal—which he encountered 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 contact 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:
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 Circuit 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 actions, and as an attendee at four past meetings of local government). Id. at 1090. The court found it relevant that the plaintiff "must confront the religious symbolism
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] courtroom from time to time" and who "has and would continue to come into direct, unwelcome contact with the Ten Commandments 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 monument." (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 holiday 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").
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 connection 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 alienating."); 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 hometown 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 location of the display in the plaintiffs' home state was one of several 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 plaintiff'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 display on public property interferes with the plaintiff's right to "`freely use public areas.'" Ellis, 990 F.2d
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 outsiders, 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 Defendants, 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 connection 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 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 government 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 perception 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 bystanders," Valley Forge, 454 U.S. at 473, 102 S.Ct. 752 (internal quotation marks omitted), who have suffered no injury "other than the psychological consequence presumably produced by observation of conduct with which one disagrees," id. at 485, 102 S.Ct. 752. 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' adoption policies. This hortatory resolution is like precatory text in a statute's preamble, which plaintiffs lack standing to challenge unless the text applies to them "in some concrete way." Webster v. Reprod. Health Servs., 492 U.S. 490,
As discussed above, Plaintiffs are not the first to challenge a governmental policy or provision.
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 Columbia 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 Establishment 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 have declined to apply a per se rule that those who reside within the geographic boundaries of the government automatically have standing to challenge the government's actions. Instead, the courts have required a showing that the challenged action actually affects these particular plaintiffs. Resolution 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.
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 challenged 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 allegiance, 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 mandate that anyone say it, [the plaintiff] has no personal injury to contest its wording in the courts" and therefore lacks standing to challenge the federal statute declaring the pledge). By contrast, we held that the plaintiff did have "standing to challenge the statutes that require the inscription of the motto on coins and currency ... given the ubiquity of coins and currency in everyday life," Lefevre, 598 F.3d at 642, and that plaintiff parents of schoolchildren did have standing to challenge 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 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' contact 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 statutes that put the plaintiffs in direct and unwelcome contact with the religious statement or religious exercise. But, in this case,
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' allegations in Flora. Just as the allegations in those cases were insufficient to confer standing, so too are Plaintiffs' allegations 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 outsiders and inflicts a stigmatic injury upon them, an `abstract stigmatic injury' resulting from such outsider status is insufficient to confer standing." The majority distinguishes those cases, 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 1050-51 n. 26. As an initial matter, despite the great number of previous decisions involving challenged governmental 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 governmental action as an attack on, or an endorsement of, a specific religion. Whether the members of the reviewing court perceive the alleged attack or endorsement as "plain" or "ambiguous" seems fraught with difficulty. And, in many of the cases I have cited, I see no ambiguity. For example, the statute declaring our motto as "In God We Trust" is an unambiguous 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 Defendants 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 mere existence of an enactment on the books (or virtual 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 unwelcome 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,
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 confer 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:
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 differentiated and direct to confer standing." Id. at 1133. Additionally, 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 constitute an injury "other than the psychological consequence presumably produced by observation of conduct with which one disagrees."
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 religious 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 standing 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 activities. 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 regularly 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 dismiss."); 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" requirement 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, 92 S.Ct. 2318, 33 L.Ed.2d 154 (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 constitutional questions.'" Larson, 456 U.S. at 238-39, 102 S.Ct. 1673 (emphasis added) (quoting Duke Power, 438 U.S. at 72, 98 S.Ct. 2620). Plaintiffs contend that their deep opposition to the resolution is patent and genuine and that their determined adverseness to the resolution satisfies the basic purpose of the standing doctrine: They are fervent advocates who provide a sharp presentation of the issues.
Plaintiffs also suggest that they must have standing to challenge 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 premise. 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 meritorious cases— because of the constitutional limits on our authority. As a general matter, I simply cannot accept an argument 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 reason to find standing.'" Valley Forge, 454 U.S. at 489, 102 S.Ct. 752 (alteration omitted) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (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, Archbishop 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 Forge, 454 U.S. at 473, 102 S.Ct. 752; see also id. at 489-90, 102 S.Ct. 752 (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 resolution carries no legal or direct, particularized, concrete, or practical effect. Accordingly, Plaintiffs cannot establish "injury in fact."
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."
I recognize that the failure to reach an important, disputed constitutional issue leaves something to be desired. But I cannot ignore the constitutional bounds of our jurisdiction: "Article 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 overcome if possible so as to reach the `merits' of a lawsuit which a party [or, as the case may be, both parties] desires to have adjudicated...." Valley Forge, 454 U.S. at 476, 102 S.Ct. 752. We lack subject matter jurisdiction. I therefore concur in the judgment affirming the district court's order dismissing the complaint.
