The Satanic Temple, Inc. v. City of Scottsdale

          ORDER

          David G. Campbell, Senior United States District Judge.

         Defendant 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.

         I. Background.

         The 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.

         The 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.

         This 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.

         The 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.

         II. Legislative Prayer and This Case.

         Legislative 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.

         The 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.

         In 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.

         III. Rule 12(b)(1) Motion.

         Because 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)).

         A 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)).

         A 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. 1989).

         Defendant's 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.

         IV. Article III Standing.

         “[T]hose 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)).

         In 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).

         Defendant 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.

         A. ...