United States District Court, D. Arizona
The Satanic Temple, Inc., et al. Plaintiffs,
City of Scottsdale, Defendant.
G. Campbell, Senior United States District Judge.
City of Scottsdale moves to dismiss Plaintiffs' claims
under Rule 12(b)(1), and Plaintiffs move to strike several
affirmative defenses. Docs. 62, 63. The motions are fully
briefed, and oral argument will not aid the Court's
decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f).
The Court will deny the motion to dismiss and grant the
motion to strike in part.
following facts state the parties' respective positions.
Scottsdale's City Council regularly opens its public
sessions with an invocation. Doc. 57 ¶ 20. On February
8, 2016, an individual called Kellie Kuester, the management
assistant to the mayor, and asked that Michelle Shortt, head
of the Arizona chapter of the Satanic Temple, be placed on
the invocation schedule. Doc. 33-4 ¶ 8. Ms. Shortt was
scheduled to give the invocation on April 5, 2016, but the
date was later changed to July 6, 2016, at her request.
Id. ¶¶ 8-10. The City later removed Ms.
Shortt from the invocation schedule. Id. ¶ 15.
record contains statements by city council members that
reflect a desire to prevent Plaintiffs from giving the
invocation. Doc. 1-1 at 2, 10, 12. Defendant also received
emails from many citizens opposing the invocation. Doc. 33-1
at 22. Defendant contends, however, that only the city
manager, Brian Biesemeyer, was authorized to decide whether
Ms. Shortt should remain on the invocation schedule. Doc.
33-2 at 14-15. Upon learning of her request, Mr. Biesemeyer
asserts that he investigated the City's practices
regarding invocation speakers and learned that the general
historical practice was to require that entities offering
invocations have a substantial connection to Scottsdale.
Id. at 8-9. According to Mr. Biesemeyer, a
substantial connection exists if “a number of
Scottsdale residents” are related to the requesting
entity. Id. at 10. Mr. Biesemeyer asserts that when
he learned from Ms. Kuester that Ms. Shortt and her
organization were from Tucson, he decided that they did not
have a substantial connection to Scottsdale and removed Ms.
Shortt from the invocation schedule. Id. at 19.
lawsuit was filed on February 26, 2018 by “The Satanic
Temple” and Michelle Shortt. Doc. 1. It seeks a
declaratory judgment that the City's exclusion of
minority religions, and the specific denial of Ms.
Shortt's invocation, violate the Establishment and Equal
Protection Clauses. Doc. 57 at 8. It also seeks to enjoin the
City from denying non-Christian groups the opportunity to
give the invocation. Id. at 9.
parties cross-moved for summary judgment, and the Court
denied the motions on the record during oral argument on July
16, 2019. See Docs. 43, 52. During a later
scheduling conference, the City questioned whether The
Satanic Temple and Ms. Shortt were in fact the “real
parties in interest” as required under Federal Rule of
Civil Procedure 17. After discussion, the Court directed
Plaintiffs to “file a short memorandum with the Court
that explains what their intent is with respect to having the
real party in interest appear in the case.” Doc. 48.
Plaintiffs filed a memorandum that identified several
additional Plaintiffs. Doc. 53. At the Court's order
(Doc. 56), Plaintiffs filed a First Amended Complaint which
includes five Plaintiffs: Ms. Shortt; The Satanic Temple as
“a voluntary group of persons, without an Arizona
charter, formed by mutual consent for the purpose of
promoting a common enterprise or prosecuting a common
objective” (the “Unincorporated
Association”); The Satanic Temple, Inc., a
Massachusetts religious corporation (“TST,
Inc.”); The United Federation of Churches LLC, a
Massachusetts LLC d.b.a. “The Satanic Temple”
(“UFC”); and Adversarial Truth LLC, an Arizona
LLC, d.b.a. “The Satanic Temple (Arizona Chapter)
(“Adversarial Truth”). Doc. 57 at 1-3. Defendant
argues that none of these Plaintiffs has standing. Doc. 63.
Legislative Prayer and This Case.
prayer occupies a unique place in Establishment Clause
jurisprudence. In Marsh v. Chambers, 463 U.S. 783
(1983), the Supreme Court found no First Amendment violation
in the Nebraska Legislature's practice of opening its
sessions with a prayer delivered by a chaplain paid from
state funds. Marsh concluded that legislative
prayer, while religious in nature, has long been understood
as compatible with the Establishment Clause. Legislative
prayer has been “practiced by Congress since the
framing of the Constitution” and “lends gravity
to public business, reminds lawmakers to transcend petty
differences in pursuit of a higher purpose, and expresses a
common aspiration to a just and peaceful society.”
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 575
(2014). “In light of the unambiguous and unbroken
history of more than 200 years, there can be no doubt that
the practice of opening legislative sessions with a prayer
has become part of the fabric of our society.”
Marsh, 463 U.S. at 792.
relevant inquiry in legislative prayer cases, therefore, is
“whether the prayer practice in [question] fits within
the tradition long followed in Congress and the state
legislatures.” Town of Greece, 572 U.S. at
577. If so, it does not violate the Establishment Clause,
even if the prayer is sectarian in nature. Once a local
government “invites prayer into the public sphere, [it]
must permit a prayer giver to address his or her own God or
gods as conscience dictates, unfettered by what an
administrator or judge considers to be nonsectarian.”
Id. at 582. The Supreme Court has also made clear,
however, that legislatures cannot adopt “a pattern of
prayers that over time denigrate, proselytize, or betray an
impermissible government purpose, ” and they must
maintain “a policy of nondiscrimination.”
Id. at 585.
light of this settled law, Plaintiffs do not claim that the
City's practice of opening city council sessions with
prayer violates the Establishment Clause. They do not ask the
Court to prohibit such prayers. Rather, they claim that the
City has discriminated against them contrary to instructions
of the Supreme Court - that the City has refused to permit
their invocation simply because it disfavors their religious
views. Doc. 57 ¶¶ 47-54. Thus, the alleged injury
in this case is not an injury to Plaintiffs' religious or
non-religious sensibilities arising from the fact that a
prayer is offered in a government-sponsored setting. The
injury alleged is discrimination - that Plaintiffs have been
denied the opportunity to give an invocation when other
religious groups have been allowed that privilege.
Rule 12(b)(1) Motion.
standing affects a federal court's subject matter
jurisdiction, it is properly raised in a Rule 12(b)(1) motion
to dismiss, even at this late stage of the litigation.
See Chandler v. State Farm Mutual Auto. Ins., 598
F.3d 1115, 1122 (9th Cir. 2010). A “lack of Article III
standing requires dismissal for lack of subject matter
jurisdiction[.]” Maya v. Centex Corp., 658
F.3d 1060, 1067 (9th Cir. 2011). A motion to dismiss under
Rule 12(b)(1) can be either a facial or factual attack on
jurisdiction. Thornhill Publ'g Co. v. Gen. Tel. &
Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see
League of Conservation Voters v. Trump, 303 F.Supp.3d
985, 992 (D. Ala. 2018) (applying the facial-factual
distinction to a standing determination under Rule 12(b)(1)).
facial attack asserts that the allegations in the complaint
are “insufficient on their face to invoke federal
jurisdiction.” Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). The complaint's
allegations are taken as true and construed in favor of the
non-moving party. Jacobsen v. Katzer, 609 F.Supp.2d
925, 930 (N.D. Cal. 2009) (citing Fed'n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996)).
factual attack “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.” Safe Air, 373 F.3d at 1039. The
plaintiff's allegations are not taken as true, the court
may look beyond the pleadings, and the plaintiff has the
burden of proving jurisdiction. Id. at 1039. The
plaintiff must “present affidavits or any other
evidence necessary to satisfy its burden[.]” St.
Clair v. City of Chino, 880 F.2d 199, 201 (9th Cir.
motion makes a factual attack. See Doc 67 at 2. It
looks past the allegations of the complaint and asserts,
among other arguments, that Plaintiffs are not a religion and
that the proposed invocation was not a prayer. Doc. 63.
Article III Standing.
who seek to invoke the jurisdiction of the federal courts
must satisfy the threshold requirement imposed by Article III
of the Constitution by alleging an actual case or
controversy.” City of Los Angeles v. Lyons,
461 U.S. 95, 101 (1985) (citations omitted). “[A]
plaintiff must show (1) it has suffered an ‘injury in
fact' that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)).
First Amendment claims, an entity establishes standing by
showing that it has been directly affected by the laws or
actions at the center of its complaint. Sch. Dist. of
Abington Twp., Pa. v. Schempp., 374 U.S. 203, 224 n.9
(1963). Although plaintiffs have the burden as to these
requirements, they can avoid dismissal of their complaint if
they provide facts which plausibly suggest that they have
standing. Barnum Timber Co. v. U.S. E.P.A., 633 F.3d
894, 899 (9th Cir. 2011).
argues that Plaintiffs have not been injured by the
City's actions. Doc. 63 at 12-17. Plaintiffs respond, for
the most part, without making any distinctions among the
various Plaintiffs - they simply address all of the Plaintiff
entities collectively as “TST.” Doc. 65. This is
unhelpful, because each Plaintiff must have standing. See
Lujan, 504 U.S. at 606 (“the standing inquiry
requires careful judicial examination of a complaint's
allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the
particular claims asserted.”) (emphasis added);
Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)
(standing not “dispensed in gross”). The Court
will address Plaintiffs individually.