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The unwelcome mat that the city of San Francisco laid out for the Rev. Donald Wildmon and his companions on the religious right can stay exactly where it is, the 9th U.S. Circuit Court of Appeals ruled. A divided panel ruled Wednesday that the Board of Supervisors did not violate the Constitution when it passed resolutions in 1998 broadly criticizing a religious coalition’s anti-gay rhetoric and suggesting that TV stations reject advertisements from the groups. “Although the defendants may have criticized plaintiff’s speech … and urged television stations not to air it, there was no sanction or threat of sanction if the plaintiffs continued to urge conversion of homosexuals or if the television stations failed to adhere to defendant’s request and aired the advertisements,” Judge Michael Daly Hawkins wrote. Judge A. Wallace Tashima joined Hawkins in American Family Association v. City and County of San Francisco, 02 C.D.O.S. 417. New City Attorney Dennis Herrera issued a press release praising the decision. “Cities have the right to state their views about human rights just like anyone else.” The city was sued after it passed the resolutions in the wake of a full-page advertisement in the San Francisco Chronicle criticizing all forms of sexual “sin,” including homosexual and premarital sex. The ad campaign, paid for by a coalition of religious groups, also alleged that homosexuals are more prone to contract STDs and engage in self-destructive behavior. It also professed that Christians love homosexuals and want to heal them. The city’s letter blamed such rhetoric for fostering a climate of violence against homosexuals — using as an example the killing in Wyoming of Matthew Shepard — and called on local TV stations to deny Wildmon a forum to espouse his views. Wildmon, a controversial evangelist who sees moral subversion even in Disney cartoons, claimed the city was infringing on his right to practice religion in violation of his First Amendment rights. Hawkins wrote that the letter and resolutions didn’t quite go far enough to run afoul of the Constitution. “Certainly, the letter and the resolution may contain over-generalizations about the religious right, at times misconstrue the plaintiff’s message and may be based on a tenuous perceived connection between the plaintiff’s advertisements and the increase in violence against gays and lesbians,” Hawkins wrote. “This does not, however, make religious hostility the primary effect of the defendant’s actions.” In dissent, Senior Judge John Noonan Jr., author of several treatises on religion and the law, wrote that the purpose of the city’s resolution was to condemn religious views, and therefore did cross the constitutional line between church and state. “To reach the plaintiffs, to strike at the heart of what the city believed as a danger, the city had to strike at the heart of the plaintiffs’ religious belief, to focus on their belief that the conduct they were trying to change was an offense to God and to make that belief responsible for murder,” Noonan wrote. “Suppose a city council today, in the year 2002, adopted a resolution condemning Islam because its beliefs incorporated the concept of a holy war and so, the resolution said, were ‘directly correlated’ with the bombing of the World Trade Center,” Noonan wrote. “Would any reasonable, informed observer doubt that the primary effect of such an action by a city could be the expression of an official hostility to the religion practiced by a billion people?”

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