An application to stay the California Court of Appeal's order
holding that, under the California Constitution, aborted fetuses in
the Los Angeles County District Attorney's custody may not be
turned over to applicants for the purpose of conducting a religious
burial service, is denied because applicants' claims under the
First Amendment of the Federal Constitution are insubstantial.
JUSTICE REHNQUIST, Circuit Justice.
Applicants [
Footnote 1] ask
that I stay an order of the California Court of Appeal, Second
Appellate District, which determines, under state law, the
disposition of some 16,000 aborted fetuses presently in the custody
of the Los Angeles County District Attorney. Because I am satisfied
that this appeal raises no substantial questions of federal law, I
will deny the application.
The fetuses were discovered by a container company on the
premises of a defunct pathology laboratory, and were turned over to
the District Attorney's office. After a period of indecision
concerning the disposition of the fetuses, during which the
District Attorney's office was contacted by several groups,
religious and otherwise, offering various means of disposal, the
District Attorney made public his decision to turn the fetuses over
to a religious organization for the purpose
Page 469 U. S. 1304
of holding a burial service, and subsequently arranged for
interment in a private cemetery that had offered its space to the
State free of charge.
In the meantime, respondent organization had filed an action for
declaratory and injunctive relief against the District Attorney, in
the California courts, seeking to prevent him from turning over the
fetuses to a religious group on the ground that such an action
would violate the Establishment Clauses of the Federal and State
Constitutions. Applicants thereafter contracted with the private
cemetery to hold a religious burial service when the fetuses were
interred, and to place a memorial plaque at the site. The
California Court of Appeal held that the District Attorney's
proposal to turn the fetuses over to a religious organization for
purposes of holding a memorial service would violate the
Establishment Clause of the California Constitution, and another
provision of the California Constitution prohibiting state action
indicating a "preference" for any particular religion. [
Footnote 2] The California Supreme
Court denied review.
The California Court of Appeal found the District Attorney's
proposed actions prohibited by independent religion clauses of the
California Constitution. This Court, of course, lacks the power to
review such decisions if they are truly independent of questions of
federal law.
See Uhler v. American Federation of Labor-Congress
of Industrial Organizations, 468 U. S. 1310
(1984) (REHNQUIST, J., in chambers). Applicants contend, however,
that, as applied, the California Constitution's provisions have the
effect of denying them their rights to free speech, assembly, and
exercise of religion protected by the First Amendment to the United
States Constitution. I think that applicants' federal claims are
insubstantial. Nothing in the order of the California court
Page 469 U. S. 1305
prevents applicants from assembling for purposes of expressing
their views with respect to abortion, or from holding a religious
or other memorial service. Applicants would find in the First
Amendment's Speech or Religion Clauses a right to hold their
service as an incident to the actual burial of the fetuses. But the
First Amendment does not entitle applicants to have the State
enhance the impact of their speech by providing the subjects of a
funeral service. The proper disposition of these fetuses is
peculiarly a question governed by the law of the State of
California. The California courts have held that California laws
concerned with avoiding the entanglement of the State with
religious causes prohibit the District Attorney from turning t,he
fetuses over to applicants for the holding of a religious service.
Because I can find nothing in the First Amendment that is
contravened by the Court of Appeal's holding, I am satisfied that
this Court would not wish to give this case plenary consideration.
The application for a stay is accordingly denied.
[
Footnote 1]
Applicants claim that this Court would have appellate
jurisdiction over this case under 28 U.S.C. 1257(2). It is
questionable whether this case would present a proper appeal, since
the lower court opinion does not specifically uphold a state
constitutional provision against a claim that it is repugnant to
federal law; nevertheless, I would reach the same conclusion with
respect to this application whether a subsequent filing would
properly be considered an appeal or a petition for certiorari.
[
Footnote 2]
The California Constitution prohibits laws "respecting an
establishment of religion," and also guarantees the "[f]ree
exercise and enjoyment of religion without discrimination or
preference. . . ." Cal.Const., Art. I, § 4.
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