Catholic League for Religious and Civil Rights v. City and County of San Francisco

joined by 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.

FACTUAL AND PROCEDURAL HISTORY

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:

*1063[Resolution urging Cardinal Levada to withdraw his directive to Catholic Charities forbidding the placement of children in need of adoption with same-sex couples]

Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and

WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic agencies should not place children for adoption in homosexual households,” and “Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children” are absolutely unacceptable to the citizenry of San Francisco; and

WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and

WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and

WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it

RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

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:

Plaintiff Catholic League is the nation’s largest Catholic civil rights organization. Founded in 1973, the Catholic League defends the right of Catholics— lay and clergy alike — to participate in American public life without defamation or discrimination. The Catholic League has approximately 6,000 members who reside in the City and County of San Francisco. The Catholic League and its members object to, and have been injured by, the anti-Catholic resolution adopted by Defendants. Defendants’ *1064anti-Catholic resolution attacks the deeply held religious beliefs of Catholics, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Catholic League, its members, and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community.

Plaintiff Dr. Richard Sonnenshein is a resident of the City and County of San Francisco. He is a devout Catholic, and he objects to and has been injured by the anti-Catholic resolution adopted by Defendants. Defendants’ anti-Catholic resolution attacks Plaintiff Sonnenshein’s deeply held religious beliefs, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Plaintiff Sonnenshein and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community. Plaintiff Sonnenshein is a member of the Catholic League.

Plaintiff Valerie Meehan is a resident of the City and County of San Francisco. She is a third-generation San Franciscan and a devout Catholic. Plaintiff Meehan objects to and has been injured by the anti-Catholic resolution adopted by Defendants. Defendants’ anti-Catholic resolution attacks Plaintiff Meehan’s deeply held religious beliefs, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Plaintiff Meehan and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community.

Plaintiffs Sonnenshein and Meehan have had direct contact with and have been injured by the offending anti-Catholic resolution, which stigmatizes Plaintiffs on account of their religious beliefs and conveys a message to them that they are outsiders, not full members of the political community. Plaintiffs Sonnenshein and Meehan, who are citizens and municipal taxpayers of Defendant City and County of San Francisco, 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, thereby chilling their access to the government. As a result of Defendants’ anti-Catholic resolution, Plaintiffs Sonnenshein and Meehan will curtail their activities to lessen their contact with Defendants, thereby causing further harm. Plaintiff Catholic League, through its members, has been similarly injured and harmed by Defendants’ anti-Catholic resolution.

(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 *1065en banc oral argument, we sua sponte directed the parties to file simultaneous briefs on the issue of Article III standing and to be prepared to discuss the issue at oral argument.

STANDARD OF REVIEW

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).

DISCUSSION

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 eases 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).1

A. Article III Standing in Establishment Clause Cases

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. Ill 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. de*1066nied, — U.S. -, 130 S.Ct. 1688, 176 L.Ed.2d 180 (2010); Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007) (“The concept of a ‘concrete’ injury is particularly elusive in the Establishment Clause context.”); Suhre v. Haywood Cnty., 131 F.3d 1083, 1085 (4th Cir.1997) (same); Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991) (same); Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.1987) (same). The difficulty stems, at least in part, from the nature of the asserted “injury in fact.” Unlike most other types of cases, in which the plaintiff suffers a physical injury or a pecuniary loss, the plaintiff in an Establishment Clause case usually does not suffer those types of harm. Vasquez, 487 F.3d at 1250-51; Suhre, 131 F.3d at 1086. Instead, the plaintiff in an Establishment Clause case typically asserts only that the government’s action has caused an injury in fact to “non-economic interests of a spiritual, as opposed to a physical or pecuniary, nature.” Vasquez, 487 F.3d at 1250-51; see Suhre, 131 F.3d at 1086 (holding that “ ‘the spiritual, value-laden beliefs of the plaintiffs’ are often most directly affected by an alleged establishment of religion” (quoting ACLU of Ga. v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1102 (11th Cir.1983) (per curiam))).

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 federal-court 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. Ill 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.

*1067In Valley Forge, 454 U.S. at 467-68, 102 S.Ct. 752, the plaintiffs brought an Establishment Clause challenge to a transfer of land from the federal government to a religious organization. The plaintiffs had never visited the land in question, nor did they have any other direct connection to it. The Court held that the plaintiffs “fail[ed] to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. Ill.... ” Id. at 485, 102 S.Ct. 752 (emphasis omitted).

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.”2 454 U.S. at 485, 102 S.Ct. 752. Below, I describe three general categories of cases. First, and most directly relevant here, I describe cases involving a specific governmental policy or statutory provision, in which the plaintiff challenges the policy or provision directly. As discussed below, the cases have held that a plaintiff has standing to challenge the policy or provision only if the plaintiff proves that the enactment applies directly to him or her. A generalized objection to the policy or provision is insufficient.

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 *1068some form of religious invocation at a public gathering or ceremony. The courts have held that a plaintiff has standing to challenge a religious exercise only if the plaintiff is directly subjected to the unwelcome exercise. Similarly, in the religious display cases, the courts have addressed situations in which the plaintiff challenges a religious display on public property. The courts have held that a plaintiff has standing to challenge a religious display only if the plaintiff has altered his or her behavior or if the plaintiff has direct and unwelcome contact with the display.

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.3 The relevant questions are whether the plaintiff has suffered a cognizable injury and whether that injury is redressable. It is to those relevant questions that I now turn.

1. Governmental Policies or Statuto'ry Provisions

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 ehap*1069lains’ retirement benefits), cert. denied,. — U.S. -, 129 S.Ct. 1918, 173 L.Ed.2d 1060 (2009); Graham v. Deukmejian, 713 F.2d 518, 519 (9th Cir.1983) (state policy requiring blood transfusions during certain surgeries, contrary to religious beliefs of Jehovah’s Witnesses); Flora v. White, 692 F.2d 53, 54 (8th Cir.1982) (per curiam) (state constitutional provision requiring certain officeholders and witnesses to profess their belief in the existence of “a God”); see also Am. Family Ass’n v. City of San Francisco, 277 F.3d 1114, 1119-20 (9th Cir.2002) (municipal board of supervisors’ formal disapproval of an advertising campaign by religious groups);4 cf. Smelt v. Cnty. of Orange, 447 F.3d 673, 676-77 (9th Cir.2006) (challenge to federal statute concerning same-sex marriages on other constitutional grounds). The courts have held that, if the statute or policy applies to the plaintiff in a concrete manner, then the plaintiff has standing. See Larson, 456 U.S. at 241,102 S.Ct. 1673 (“The threatened application of [the statutory provision] to the Church surely amounts to a distinct and palpable injury to [the plaintiffs]: It disables them from soliciting contributions in the State of Minnesota unless the Church complies with registration and reporting requirements that are hardly de minimis.”)', Graham, 713 F.2d at 519 (“The Witnesses must show that they have suffered injury, or that future injury is threatened, as a result of the defendants’ conduct. The Witnesses have so alleged, claiming that blood transfusions are contrary to their religious beliefs and that California’s actions threaten to discourage physicians from performing certain operations without such transfusions.” (citation omitted)). If the plaintiffs are not subject to the challenged provision, however, they lack the requisite particularized harm. See Lefevre, 598 F.3d at 643 (holding that the plaintiff lacked standing to challenge the statute declaring the national motto “In God We Trust” because the allegation that, because of the statute, the plaintiff is a “political outsider” and suffers “a stigmatic injury” “is insufficient to confer standing”); Rio Linda, 597 F.3d at 1016 (holding that the plaintiff lacked standing to challenge the federal statute codifying the pledge of allegiance as including the words “under God” because the plaintiff sustained no personal injury where “nothing in the Pledge [or the statute codifying it] actually requires anyone to recite it”); In re Navy Chaplaincy, 534 F.3d at 758 (holding that navy chaplain plaintiffs could not challenge the U.S. Navy’s alleged policy of discrimination in its retirement system, in favor of Catholic navy chaplains, because the plain*1070tiffs themselves had not suffered discrimination); Flora, 692 F.2d at 54 (holding that atheist plaintiffs lacked standing to challenge a discriminatory state constitutional provision because the provision had never been applied to the plaintiffs); see also Smelt, 447 F.3d at 683-86 (holding that plaintiff same-sex couple lacked standing to challenge fede