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Religious groups can't sue city for condemning anti-gay ads

By The Associated Press

01.17.02

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SAN FRANCISCO — A federal appeals court panel has rejected the claims from three religious groups that the city of San Francisco violated their First Amendment rights by publicly denouncing a nationwide anti-gay ad campaign.

The 9th U.S. Circuit Court of Appeals yesterday affirmed a district court's dismissal of a lawsuit brought against the city and county of San Francisco in 1998 by American Family Association Inc., Newport News, Va.-based Kerusso Ministries and Washington, D.C.-based Family Research Council.

The three-judge panel found that San Francisco, although it had urged television stations not to air the ads, had not threatened to impose any sanctions if the groups continued to urge homosexuals to convert to a heterosexual lifestyle, and therefore did not violate the groups' rights.

The plaintiffs were three of several groups that sponsored the "Truth in Love" ad campaign that appeared in newspapers and television commercials nationwide in 1998. The ads proclaimed that "God abhors any form of sexual sin," including homosexuality, premarital sex and adultery.

The San Francisco Board of Supervisors condemned the ad after it ran full-page in a San Francisco newspaper and sent an open letter to the groups, denouncing the campaign's tone as the type of "hateful rhetoric" that incites hate crimes.

"What happened to Matthew Shepard is in part due to the message being espoused by your groups that gays and lesbians are not worthy of the most basic equal rights and treatment," the letter read in part. Shepard was a 21-year-old homosexual University of Wyoming student who died in 1998 after being beaten into a coma and tied to a fence.

The supervisors then passed a resolution, condemning the murder of Billy Jack Gaither, an Alabama man killed after reportedly making an unwanted sexual advance on another man. The final paragraph of the resolution "calls for the Religious Right to take accountability for the impact of their long-standing rhetoric denouncing gays and lesbians," and alleged that such language could lead to crimes such as those committed against Gaither.

The groups had sought from the courts a declaration that the open letter and resolution by San Francisco officials was a violation of the groups' First Amendment rights. The groups also sought an injunction to prevent the city from making any future official pronouncements about individuals and organizations that perceive homosexuality as a sin.

But the appeals court rejected the claim, saying in the opinion that the city did not threaten to impose a sanction against anyone running the ads. The appeals court also agreed with the lower court that the letter and resolution, taken as a whole, were not primarily hostile toward religions.

In the opinion, Judge Michael Daly Hawkins wrote that "although the letter and resolutions may appear to contain attacks on the Plaintiff's religious views, in particular that homosexuality is sinful, there is also a plausible secular purpose in Defendant's actions — protecting gays and lesbians from violence..."

Brian Fahling, the lawyer for Tupelo, Miss.-based American Family Association, said he was shocked by the ruling and would petition the appeals court for a rehearing.

"If that's not hostility toward religion, then it hasn't been invented yet," Fahling said.

Tom Ammiano, president of the board of supervisors, did not immediately return calls seeking comment.

Judge John T. Noonan dissented, noting that he disagreed as to the primary effect of the city's letter.

"To assert that a group's religious message and religious categorization of conduct are responsible for murder is to attack the group's religion," Noonan wrote.

"The city used a means that officially stigmatized a religious belief as productive of murderous consequences."

The case is American Family Association v. City and County of San Francisco.

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